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.t 



The Law of Torts : 






A TREATISE ON THE 

PRINCIPLES OF OBLIGATIONS ARISING FROM CIVIL 

"WRONGS IN THE COMMON LAW: 

TO WHICH IS ADDED THE 

DRAFT OP A CODE OP CIVIL WRONGS 

PBEFAEED FOB THE OOTBBSQCBNT OF TBCDIL. 



BY 

SiE FREDERICK POLLOCK, Baet. 

ov ijkcolk's ikx, barristxr-at-law ; 

CORPUS PROrSSSOB OP JURIiiPRUDBNCB IN TUB UNIVXBBITY OP OXPORD ; 

CORBK8POXDIXO MKMBBB OP THB INSTITXTTB OP PRANCE ; 

LATB PBLLOW OP TRINITY COLLBOX, GAMBRIDOX ; AND 

HONOBABT DOCTOR OP LAWS IN THB UNIVBR8ITIE8 OP BDINBUROH AND DUBUN. 

Author of ^^ Principle of Contractf^* '*-4 Digest of the Lata of Partnership" ^e. 



FOURTH EDITION. 



LONDON: 

STEVENS AND SONS, LIMITED, 
119 & 120, CHANCERY LANE, 

1896. 



London: 

PRINTED BT 0. F. BOWOBTH, OBBAT NBW BTKBSS, FBtXBft LANB| l.G. 



TO THE MEMOBY 

OF 

THE RiaHT HONOURABLE 

' SIR JAMES SHAW WILLES, Knt, 

SOMETIME A JUSTICE OF THE COMMON BENCH, 

A MAN COURTEOUS AND ACCOMPLISHED, 

A JUDGE WISE AND VALIANT. 



■4 



I 



f 



TO THE HONOURABLE 



Ot.IVER WENDELL HOLMES, Juim., 

A JUSnOE 07 THE 8TJPHE1CE JXTDIOIAL OOITBT OF THB 
00Ml£02rvrSALTH 07 HASSACHUSETTB. 



My Dear Holmes, 

A preface is a formal and a tedious thing at best; it 
is at its worst when the author, as has been oommon in 
law-books, writes of himself in the third person. Yet there 
are one or two things I wish to say on this oooasion, and 
cannot well say in the book itself ; by your leave, therefore, 
I will BO far trespass on your friendship as to send the book 
to you with an open letter of introduction. It may seem . 
a mere artifice, but the assurance of your sympathy nfill 
enable me to speak more freely and naturally, even in print, 
than if my words were directly addressed to the profession at 
large. Nay more, I would fain sum up in this slight token 
the brotherhood that subsists, and we trust ever ehall, 
between all true followers of the Common Law here and 
on your side of the water; and give it to be understood, 
for my own part, how much my work owes to you and to 
others in America, mostly citizens of your own Common- 
wealth, of whom some are known to me only by their pub- 
lished writing, some by commerce of letters ; there are some 
also, fewer than I could wish, whom I have had the happiness 
of meeting face to face. 

When I came into your jurisdiction, it was from the 
Province of Quebec, a part of Her Majesty's dominions 



VI INTBODUCriON. 

which is governed, as you know, by its old French law, 
lately repaired and beautified in a sort of Revised Version of 
the Code Napoleon. This, I doubt not, is an excellent thing 
in its place. And it is indubitable that, in a political sense, 
the English lawyer who travels from Montreal to Boston 
exchanges the rights of a natural-bom subject for the comity 
accorded by the United States to friendly aliens. But when 
his eye is caught, in the every-day advertisements of the first 
Boston newspaper he takes up, by these words — " Common- 
wealth of Massachusetts: Suffolk to wit" — ^no amount of 
political geography will convince him that he has gone into 
foreign parts and has not rather come home. Of Harvard 
and its Law School I will say only this, that I have 
endeavoured to turn to practical account the lessons of what 
I saw and heard there, and that this present book is in some 
measure the outcome of that endeavour. It contains the 
substance of between two and three years' lectures in the 
Inns of Court, and nearly everything advanced in it has been 
put into shape after, or concurrently with, free oral exposition 
and discussion of the leading cases. 

My claim to your good will, however, does not rest on 
these grounds alone. I claim it because the purpose of this 
book is to show that there really is a Law of Torts, not 
merely a number of rules of law about various kinds of 
'torts — ^that this is a true living branch of the Common Law, 
not a collection of heterogeneous instances. In such a 
cause I make bold to count on your sympathy, though I will 
not presume on your final opinion. The contention is 
certainly not superfluous, for it seems opposed to the weight 
of recent opinion among those who have fairly faced the 
problem. You will recognize in my armoury some weapons 
of your own forging, and if they are ineffective, I must have 
handled them worse than I am willing, in any reasonable 
terms of humility, to suppose. 



• • 



INTBODUCnON. VU 

It is not surpiismg, in any otuse, that a oomplete theory 
of Torts is yet to seek, for the subject is altogether modem. 
The earliest text-book I have been able to find is a meagre 
and unthinking digest of " The Law of Actions on the Case 
for Torts and Wrongs," published in 1720, remarkable 
ohiefly for the depths of historical ignorance which it occa- 
sionally reveals. The really scientific treatment of principles 
begins only with the decisions of the last fifty years ; their 
development belongs to that classical period of our jurispru- 
dence which in England came between the Common Law 
Procedure Act and the Judicature Act. Lord Blackburn 
and Lord Bramwell, who then rejoiced in their strength, are 
still with us.* It were impertinent to weigh too nicely the 
fame of living masters ; but I think we may securely antici- 
pate posterity in ranking the names of these (and I am sure 
we cannot more greatly honour them) with the name of their 
ooUeague WiUes, a consummate lawyer too early cut o£P, who 
did not live to see the full fruit of his labour. 

Those who knew Mr. Justice Willes will need no explana- 
tion of this book being dedicated to his memory. But for 
others I will say that he was not only a man of profound 
learning in the law, joined with extraordinary and varied 
knowledge of other kinds, but one of those whose knowledge 
is radiant, and kindles answering fire. To set down all I 
owe to him is beyond my means, and might be beyond your 
patience ; but to you at least I shall say much in saying that 
from Willes I learnt to taste the Year Books, and to pursue 
the history of the law in authorities which not so long ago 
were collectively and compendiously despised as ''black 
letter." It is strange to think that Manning was as one 
crying in the wilderness, and that even Kent dismissed the 
Year Books as of doubtful value for any purpose, and 

* Lord BlaokbT^in is now (1896) the only suryiyor. 



• • • 



VUl INTEODUCTION. 

certainly not worth reprinting. You have had a nohle 
revenge in editing Kent, and perhaps the laugh is on our 
side hy this time. But ii any man still finds offence, you 
and I are incorrigible offenders, and like to maintain one 
another therein as long as we have breath ; and when you 
have cast your eye on the historical note added to this book 
by my friend Mr. F. W. Maitland, I think you will say that 
we shall not want for good suit. 

One more thing I must mention concerning Willes, that 
once and again he spoke or wrote to me to the effect of 
desiring to see the Law of Obligations methodically treated 
in English. This is an additional reason for caUing him to 
mind on the completion of a work which aims at being a 
contribution of materials towards that end: of materials 
only, for a book on Torts added to a book on Contracts does 
not make a treatise on Obligations. Nevertheless this is a 
book of principles if it is anything. Details are used, not in 
the manner of a digest, but so far as they seem called for to 
develop and illustrate the principles ; and I shall be more 
than content if in that regard you find nothing worse than 
omission to complain of. But. the toils and temptations of 
the craft are known to you at first hand ; I will not add the 
burden of apology to faults which you will be ready to for- 
give without it. As to other readers, I will hope that some 
students may be thankful for brevity where the conclusions 
are brief, and that, where a favourite topic has invited expa- 
tiation or digression, some practitioner may some day be 
helped to his case by it. The work is out of my hands, and 
will fare as it may deserve : in your hands, at any rate, it is 
sure of both justice and mercy. 

I remain, yours very truly, 

FEEDEEICK POLLOCK. 

LmooLN's IjxSf 
CTiriitmas Vacation, 1886. 



» 



ADVERTISEMENT 

TO THE FOURTH EDITION. 



In this edition there has not been much oocafflon for material 
change. I have ventured to dispute the correctness of a recent 
decision of the Court of Appeal, Temperton v. Russell^ '93, 
1 Q. B. 715, in so far as it holds that the allegation of 
malice will make it actionable for either one or more persons 
to persuade any one, by means not unlawful in themselves, 
to do or abstain from doing that which it is in his lawful 
discretion to do or not to do. Another important case, 
Taylor v. Manchester^ Sheffieldj and Lincolnshire Railway 
Company^ '95, 1 Q. B. 134, was reported while the last 
sheets were under revision, and therefore could receive only 
brief notice. It is hardly too much to say that Alton v. 
Midland Railway Cotnpany, 19 C. B. N. S. 213 ; 34 L. J. 
C. P. 292, is no longer authority since the observations 
made on it by the Lords Justices. Some other late cases of 
interest are noticed in the Addenda. 

The Employers' Liability Act most unfortunately remains 
unamended. It would not be proper to repeat in a practical 



X ADVERTISEMENT TO THE FOUBTH EDITION. 

law-book the opinion whioh I recorded in a separate note to 
the report of the Boyal Commission on Labour. 

The series of ^^ Bevised Beports " now in progress is cited 
as B. B. 

The current series of Law Beports is cited thus : Andrew 
V. Crossleyy '92, 1 Ch. 492, C.A. 

Otherwise the same forms of citation are used as in my 
book on " Principles of Contract," 6th ed., 189i. 

My cousin, Mr. Dighton N. Pollock, of Lincoln's Inn, has 
again given me valuable help in the revision of the Index. 

F. P. 

LnrooLir's Iznr, 

Mareh^ 1895. 



TABLE OF CONTENTS. 



Book I. 

OSNEBAL PABT. 



CHAPTEB I. 
Thb Natubb of Tobt in Genkbal. 

PAOB 

Absence of autlioritatiTe definition 1 

Historioal distinctions . . . . . . . . . , . . . . 6 

Personal wrongs 7 

Wrongs to property 7 

Wrongs affecting person and property- . . 7 

WHf nl wrongs . . . . . . • . • . • . . . . • 8 

Wrongs unconnected witli moral blame . . . . , , . , . . 9 

Wrongs of improdence and omission . . • • 10 

Historical anomaly of law of trespass and oonyersion 12 

Early forms of action 13 

Kationalized version of law of trespass 15 

Analogies of Roman law 17 

Dolus and Cfulpa 17 

Idahility qtuui ez delieio .. •• ..18 

Sommary of resolts 19 



CHAPTEB II. 
Pbdtoipuss of Liabilitt. 



Want of generality in early law 21 

General duty not to do harm in modem law 22 

Breach of specific legal daty 23 

Duty of respecting property 24 

Duties of dilig^oe . . . . . • . . . . . . . . . . 24 

Assumption of skill. . .. .. .. .. .. .. ..24 

Exception of action under necessity 26 



xii TABLE OF CONTENTS. 

LUbOitj in relation to oonfleqaenoes of act or defanlt 26 

Heaanre of damag^es 27 

'* Immediate oaiue *' •• 28 

Liabilitj for oonaeqnenoes of wilfnl act 28 

** Natnral ooiueqnenoes " 30 

** Natural and probable " conBeqaenoe 82 

Liability for oonseqnenoea of treBpaas 34 

Consequenoes too remote . . . . . . . . . . . . . . 35 

Liability for negligence . . . . . . . . . . . . . . 36 

Contrasted oaeee of non-liabilitj and liability : Cox v. Burbidge ; 

Lee r. Riley 40 

Metropolitan Rail. Co. r. Jackson 41 

Non-liability for consequences of unusual state of tbings : Blyth v, 

Birmingham Waterworks Co 42 

Sharp v. Powell ' .. ..42 

Whether same rule holds for consequences of wilful wrong : Clark v. 

vyliamDers •• » » •• •• •• •• •■ 43 

Consequences natural in kind though not in oiroumstance . . . . 46 

Damages for '* nervous or mental shock" 46 



CHAPTER III. 
PisBSOira ijrnscTED bt Tortb. 



1. Limitations of Pertonal Capacity. 

Personal status immaterial in law of tort : but capacity material 

Exceptions : Convicts and aliens . . 

Infants . . . . . . . . . . • . 

Married women : the common law 
Married Women's Property Act, 1S82 . . 
Common law liability of infants and married women 
Corporations . . . . . . . . . . . . 

Responsibility of public bodies for management of works under their 
control ,• f( It .. •• .. .. .. ., 64 




2. Effect of a Party' $ Death, 

Actio pereonalit moritur eum persona . . . . 66 

Qu. of the extension of the rule in Osbom r. Gillett . . . . . . 57 

Exceptions : Statutes of Edw. III. giving executors right of suit for 

trespasses . . . . ,, . . . . . . . . . . . . 69 

Of WUl. IV. as to injuries to property . . . . . . . . . . 60 

No right of action for damage to personal estate consequential on 

personal injury . . . . . . . . . . . . . . 60 

Lord Campbell's Act : rights created by it 61 



TABLE OF CONTENTS. XUl 

TAon 
Gonstmotion • .. ..62 

Interetta of BTirylTora distmot 64 

Statutorj oanae of action is in sabstltatioii not ounmlatiTe .. 64 

Soottiah and Amencan laws 64 

Bight to follow property wrongfnllj taken or conTerted . . 66 

Bnlo limited to reooTeiy of specific property or its yahie : Phillips v. 

Homfray 66 

8. LiahilUyfor the Torlt of Agents and Servants, 

Command of principal does not ezcnse agent's wrong 67 

Cases of special dnty, absolate or in nature of warranty, distin- 
guished 67 

Modes of UabUity for wxangfnl acts of others 68 

Command and ratification . . 69 

Master and servant 70 

Beason of master's liability 70 

Who is a servant 72 

Specific assumption of control '74 

Temporary transfer of service • • . . 74 

** Power of controlling the work " explained 76 

What is in course of employment 76 

(a) Execution of specific orders 76 

(b) Negligence in conduct of master's business . . . . 77 
Departare or deviation from master's business .. ..78 

(c) Excess or mistake in execution of authority .. ..80 

Interference with passengers by guards, Ac 81 

Arrest of supposed offenders .82 

Act wholly outside authority : master not liable . . . . 83 

(d) WOfnl trespasses, fto., for master^s purposes . . . , 84 

IVaud of agent or servant . • . . 86 

Liability of firm for fraud of a partner 87 

Injuries to servants by fault of feUoWfServants 88 

Common law rule of master's immunity 88 

Beason given in the later cases 89 

Servants need not be about same kind of work 90 

Provided there is a general common object .91 

Belative rank of servants immaterial 92 

Servants of sub-contractor .93 

Volunteer assistant on same footing as servant 98 

Exception where master interferes in person .94 

Employers' Liability Act, 1880 94 

Besnlting complication of the law 96 



XIV TABLE OF CONTENTS. 

OHAPTEB IV. 
QuFniRATi Ezospnon. 

Oonditiong exdnding liability for act prima foe^ w r o ay fu l .. ..97 
Gtoenl and partioalar exoeptions .. •• 98 

1. AcU of State. 

Acta of state . . .. 99 

Gkneral ground of exemption 100 

Local actions againet yioeroy or governor • 101 

Power to exdade aliena 102 

Acta of foreign powers • • 102 

Summary .. 108 

2. Judicial actt. 

Jndioialacta 104 

Liability by statute in special oases 106 

Judicial acts of persons not judges . . . . 106 

3. JSxeeutive acts. 

ExeoutiYe acts 107 

Acts of naval and military officers . . . . . . . . . . 108 

Of other public authorities 109 

Indian Act XVUL of 1850 109 

4. Quati'Judieial aett. 

Acts of quasi-] udioial discretion 110 

Rules to be observed .. .. .. .. .. .. ..Ill 

Absolute discretionary powers 112 

Whether duty judicial or ministerial : Ashby v. White . . . . 112 

6. Parental and Quaei'parental Authority, 

Authority of parents 113 

Of custodians of lunatics 113 

6. Autkoritiet of Necettity. 
Of the master of a ship ., .. .,114 

7. Damage incident to authorized acts. 

Damage incidentally resulting from lawful act 1 15 

Damage from execution of authorized works 116 

No action for unavoidable damage 117 

Care and caution required in exercise of discretlonazy powers • • 118 

8. Inevitable Accident. 

Inevitable accident resulting from lawful act 121 

On principle such act excludes liability 122 

Apparent conflict of authorities ••124 



TABLE OF CONTENTS. XV 

FJLOS 

Amerioan dedsionB : The Nitro-Glyoerine Oaae (Sup. Ot. XT. 8.) • • 125 

Brown f. Eendall (Mass.) .. •• •• ..126 

Other American oaseB •• • • •• •• 127 

English authorities : oasea of treepaaB and ahooting 129 

Gaaes where ezoeption allowed • • • 132 

9. £x^em qf Common J^tif^kit. 

Immnnitj in ezeroise of common righta. • • • • • • • • , 135 

Digging wella, &o., in a man'a own land • • • • • • • • 188 

Chaaemore v, Richards . . • 189 

Other applioationa of same principle .. .. •• •• •• 140 

Whether maUoe material in these casea , •• •• 142 

Boman doctrine of '* animus Ticinonocendi*' 143 

No exdusiTe right to names 145 

10. JUave and Licence: Volenti nan Jit iniurut. 

Consent or acceptance of risk • •• •• 145 

Express licence •• •• •• •• 146 

Limits of consent . . • • . • . • . • • • • , • • 146 

Licence obtained by fraud 149 

Extended meaning of volenti nonjlt iniuria , 160 

Belation of these cases to inevitable accident . . • 151 

Knowledge of risk opposed to duty of warning . . • , . , 162 

Cases between employers and workmen : Smith v. Baker . . • , 163 

Distinction where no negligence at all . • 155 

Distinction from cases where negligence is ground of action. . •• 155 

11. Works of Neceuity 157 

12. PrivaU JDefence. 

Self-defence 158 

Killing of animals in defence of property 160 

Assertion of rights distinguished from self-defence • • • . • , 160 

Lijuiy to third persons in self-defence • • • 161 

13. Flaint\fa Wrong-doer, 

Harm suffered by a wrong-doer .. 162 

Sunday trayelling : conflict of opinion in XT. S. 164 

Cause of action connected with unlawful agreement 165 



CHAFTEB V. 

Of BmomusB fob Tobib. 

Diyersity of remedies 166 

Self -help .. .. .. •• •• .* •. .. •. 167 

Judicial remedies : damages 168 



XVI TABLE OF CONTENTS. 

Nominal damagea 169 

Nominal damages poaiible only when an absolute right is infringed . . 1 70 

Cases where the damage is the gist of the action 171 

Peooliarity of law of defamation 173 

Ordinary damages 173 

Exemplary damages .. .. .. •• 174 

Analogy of breach of promise of mazriage to torts in this respect . . 177 

Mitigation pf damages 177 

Cononrrent ^fit seyepible oauses of action 177 

Injunctions.,. .,. .,. .. .. • .. 178 

On what principle granted ^ 179 

Former ooncnirenli jurisdiction of common law and equity to give 

compensation for fraud 179 

Special stat^ifory rppiediep whea exolusiTe 180 

Joint wrong-doers 182 

Rules as to contribution and indenmity 183 

Supposed rule of trespass being '*mergfed in felony " .. .. 186 

No known means of enforcing the rule if it exists 186 

Locality of wrongful act as affecting remedy in English Court . . 187 

Acts not wrongful by English law 188 

Acts justified by local law. . .. .. .. .. .. .. 188 

Act wrong^fnl by both laws 189 

Phillips V, Eyre 189 

Limitation of actions 192 

Suspension of the statute by disabilities . . . . 193 

From what time action runs . • . . . . . • . . . . 193 

Special protection of justices, constables, Ac 194 

Exception of concealed fraud •• 194 

Conduaian of (General Part .. .. 196 



Book II. 

8PE0IFI0 WBONaS. 

CHAPTER VI. 

I. AnauU and B(Ui$ry, 

What is a battery 196 

What an assault 197 

Excusable acts 199 

Self-defence 201 

Menace distinguished from assault .. .. 202 

Sunmiaiy proceedings when a bar to dyil action 202 



• t 



• • 



i 



t f 



TABLE OP CONTENTS. XVU 

n. FoIh ImpritonmtnU 

What is false imprisoxmient , 202 

Jnstifioation of arrest and imprisonment . • . • • • . . 204 

Who is answerable 206 

Reasonable and probable oanse 207 



• 



III. It^riet in Family Maticns. 

Protection in personal relations 208 

Historioal accidents of the oonmion law herein 209 

Trespass for taking awaj wife, &o., and^Mr quod tervitium amitit . . 210 

<* Criminal conTCrsation *' 211 

Enticing awaj servants 212 

Actions for seduction in modem practice 218 

Damages .. .. 214 

Serrices of jonng child 216 

Capridons operation of the law 216 

Constmctiye service in early oases . . 216 

Intimidation of servants and tenants . . . . . . . • 217 



CHAPTEB Vn. 
Dbfaxation. 

Civil and criminal jurisdiction 210 

Slander and Hbel ' 219 

1 1 Slander. 

When slander is actionable . . . . . . 221 

Meaning of ^ma/o^ libellous" 221 

Special damage 222 

Repetition of spoken words 228 

Special damage involves definite temporal loss 228 

Imputation of criminal ofiFence . . . . . • . . . . • . 224 

Charges of mere immorality not actionable . . 226 

Slander of Women Act 226 

Imputation of contagious disease 226 

Evil-speaking of a man in the way of his business . . . • . . 227 

Words indirectly causing damage to a man in his business . . . . 229 

2. Defamation in g&noraL 
Defamation .. •> •• •• •• •• •• •• 229 

**ImpUedmaUce" .. .. 230 

What is publication 230 

Vicarious publication . . . . . . . • . . • • • • 282 

Construction of words : Innuendo. . . . . * . . . . . . 283 

Libellous tendency must be probable in law and proved in fact * . 234 
Repetition and reports may be libellous 236 

p. i 



• •• 



iYia TABLE OF COKTENTS. 

8. JBx€0ptiofu. PAoa 

Exoeptioiui : fair oonnment 236 

What is open to oomment, matter of law 238 

Whether cominent is fair, matter of fact 238 

tTaatifioation on ground of truth .. •■ •• •• •• •• 239 

Mnst be sabatantiaUj complete 240 

Defendant's belief immaterial 241 

Parliamentary and jndicial immnnity 241 

Other persona in judicial proceedings 242 

Reports of officers, &o. .• •• »• «• •• .. 243 

Qualified immunity of ** priyileged communications " . . . • 244 

Conditions of the privilege 244 

<< Express malice" 246 

What are privileged oocasbns .. .. 246 

Horal or social duty 246 

Self -protection 247 

Information for public good 247 

Fair reports 248 

Parliamentary papers 249 

Parliamentary debates and judicial proceedings 249 

Volunteered reports 251 

Excess of privilege 262 

Honest belief is not necessarily reasonable belief 253 

Power of jury in nnncsning damages . . 264 

Statutory defences 264 

limits of interrogatories in action for libel 264 

Bad reputation of plaintifP • • 264 

Injunctions 266 



CHAPTEBYni. 
WBOVG0 ov Tratjh axs Maxjob. 



I. J)0oeit. 
Katove of the wrong 266 

Concurrent jurisdiction of conmion law and equity 266 

Difficulties of the subject : complication with contract • • 267 

Questions of fraudulent intent 268 

Fraud of agents 269 

(General conditions of right of action . , 269 

(a) Falsehood in fact 261 

Misrepresentations of law ., .. 262 

Falsehood by garbled statements 263 

(b) Knowledge or belief of defendant 263 

Representations subsequently discovered to be untrue . . 267 

Reckless assertions 269 

Breach of special duty to give correct information. . . . 269 
Estoppel. ^wfTffir^fv.Xo^A; former supposed rule of equity 270 



TABLE OF CONTENTS. XIX 

(o) Intention of the statement ., ..271 

Bepreaentations to olaas : Polhill v. Walter 272 

Denton 9. G. N. B. Co 278 

Peek r. Gnmej , , . , 274 

(d) Belianoe on the repreaentation 274 

Meana of knowledge immaterial without independent in- 

qniiy 276 

Perfnnctoiy inqoiij- will not do , , , , , , , , 276 

AmbigaouB statements 277 

(e) Lord Tenterden's Act 278 

Quaere as to law under Jodioatore Acts 279 

Misrepresentation by agents 280 

Liabilitj of corporations herein 282 

Reason of an apparentiy hard law • • 283 

II. Slander 0/ Title, 

Slander of title 284 

Beoent eztensLons of the principle 284 

Trade marks and trade names .« 287 

m. Malieioue Froeeeuiion and Abuse qf Jh^oee$$, 

Halioions prosecution < 288 

lialidons civil proceedings 289 

IV. Other Maliewut Wrongs. 

Conspiraoj .. .. 292 

Belation of conspiracy to lawful acts or forbearances of third person 296 

Malicious interference with one's occupation 296 

Contract 297 

Or franchise 297 

Maintenance • •• 298 



CHAPTEBIX. 

Wsoircn to Posbbsbion axs Pik>febxt. 



I. Duties regarding Property generally. 

Absolute dutj to respect other's property 299 

TiUe, justification, excuse.. .. .. • .. 299 

Titie dependent on contract 300 

Exceptional protection of certain dealings in good faith . . . . 301 

Common law rights and remedies 302 

Possession and detention 303 

Trespass and conyersion . . . . . . . • 306 

Alternative remedies 306 

62 



XX 



TABLE OF COKTENTS. 



n. Treipau. 



What ahall be said a trespus 
Quaere OQ&oerning balloona 
Trespats to goods 



PAOB 

.. 307 
.. 308 
.. 310 



m. It^furUi to JEtevenion. 
Wrongs to an owner not in possession . . 



311 



rV. Watte. 

What is waste 

Hodem law of waste : tenants for life .» 
Landlord and tenant .. 



.. 318 
.. 314 
.. 316 



y. Ocmverium. 



Relation of trover to trespass 
What amounts to oonyersion 
Acts not amounting to oonversion 
Dealings nnder auihoritj of apparent owner 

Acts of sernints 

Bedeliyerj by bailees 



.. 316 
.. 317 
.. 320 
.. 321 
.. 322 
.. 328 



Abuse of limited interest . . • . • . . 324 

CkmTersion by estoppel 327 



VI. Injuriii between Tmanti in Common, 
Trespasses between tenants in common . « 

YH. Extended proteetum of Foteeuion. 

Bights of de facto possessor against strangers . . 
Rights of owner entitled to resume possession . . 

Rights of derivatiTe possessors 

Possession derired through trespasser 



.. 327 



.« 329 
.. 332 
.. 333 
.. 333 



ym. Wronge to Saeemente, ^. 
Violation of inoorporeal rights 



836 



IX. Oroundt of Juetijkation and Sxeute, 

liioenoe ' « . . . • « . « . . 

ReTOOation of lioenoe 

Distinotion from grant as regards strangers 

Justifioation by law 

Re-entry : herein Of forcible entiy 
Fresh re-eiltry on trespasser 
Reoilption 6f goods . . , . 



.. 836 

.. 337 

.. 841 

.. 342 

.. 343 

.. 346 

.. 346 



TABLE OF CONTENTS. 



23U 



PAGE 

Frop^BS of hkw : breaking doom . . . . • . ' 348 

Distress 849 

Damage feasant 349 

Entry of distrainor , 360 

Trespasses justifi^ by necessity . . ... . . 361 

Fox-hnnting not privileged , .. 363 

Trespass ab initio , , , , 363 

X. Bemediet, 

Taking or retaking goods 366 

Costs where damage nominal 366 

Injunctions 368 

Effect of changes in procedure . . . . . . . . , . , . 368 



CHAPTER X. 

NxTZBAjroa. 

Nuisance, public or private 

Priyate right of action for public nuisance 

Special damage must be shown . . 

Private nuisance, what . • 

3Kinds of nuisance affecting — 

1 . Ownership . . . . • • 

2. lura in re cUiena . . . , 

3. Convenience and enjoyment . . 
Measure of . nuisance 
Injury to health need not be shown 
Plaintiff not disentitled by having come to the nuisance 
Innocent or necessary character of offensiye .occupation^ 

ence of place, no answer 

Modes of annoyance 

Injury common to the plaintiff with others 

Injury caused by independent acts of different persons 

Obstruction of lights 

Nature of the right to light 

Any substantial diminution is a wrong . . 

Supposed rule as to angle of forty-five degrees 

Enlargement or alteration of lights 

<' Nuisance " to market or ferry 

Bemedies for nuisance 

Abatement . • 

Notice to wrong-doer 

Nuisances of omission 

Old writs 



or 



convem- 



869 
360 
361 
363 

364 
366 
366 
366 
366 
366 



. ."^68 

. 369 

. 871 

. 372 

. 372 

. 372 

. 873 

. 374 

. 874 

. 376 

. 376 

. 376 

. 377 

. 878 

. 379 



• • 



XXU TABLE OF CONTEKTS. 

pi.oa 
Damages 379 

Injanotiona .. •• •• .. SSO 

Diffioultj or expense of abatement no answer 386 

Parties entitled to sae for nuisance .. .. 386 

Firtiee liable 386 



OHAPTEBXI. 

NsaLiamrGa. 

I. The general Ckmeepiion. 

OmisBion oontarasted with action as ground of liability . . . . 889 

Qeneral duty of caution In acts 390 

Overlapping of contract and tort . • . . . . . . . . 391 

Definition of negligence . . . . . . 392 

Standard of duty is external . • . . 394 

Diligence includes competence 396 

II. Evidenee of Negligmee, 

Negligence a question of mixed fact and law 396 

Burden of proof . . . . . • . . . . . . . . . . 397 

Wbere there is a contract or undertaking . . 399 

Things within defendant's control . . 400 

Common course of affairs judicially noticed 401 

On eyidence sufficient in law, question is for jury . . . . . • 401 

Metropolitan B. Go. v, Jackson 403 

Cases of level crossings 404 

"Invitation to ahght" 406 

Complications with contributory negligence . . 407 

" Evidence of negligence: *' Smith r. L. & S. W. B. Co 407 

No precise general rule 409 

Due care varies as apparent risk: application of this to accidents 

through personal infirmity 410 

Distinction where person acting has notice of special danger to infirm 

or helpless person 411 

III. CorUribuiory Negligmuie. 

Actionable negligence must be proximate cause of harm : where 
plaintiffs own negUgence proximate cause, no remedy . . . . 412 

Tuff «. Warman 4U 

Badley v. L. & N. "W. B. Co 416 

'* Proximate" or *' decisive" cause 417 

Self -created disability to avoid consequences of another's negligence 418 



• •• 



TABLE OF OOTSTTESTS. XZIU 

TAom 

Earlier iUiutratioitf : DaTlae r. Hann • • , . , , . , , . 419 

Bntterfidld 9. Forrester .. «. •« .. .. .. .• 419 

The exploded dootrine of' <identi6oatioii" 422 

▲oddents to children in oostodj of adnlt • • 426 

Children, ftc., nnattended. . . . 426 

Ghildr.Heam 427 

Admiralty role of dividing loes , . , . , 428 

IV. Auxiliiny Bulet and Frenmptim*. 

Action under difBcnltj oanaed by another's negligence • . . . 429 

Ko duty to anticipate negligence of others • . . 430 

Choice of risks nnder stress of another's negligence . • • • . . 431 

Clayards v. Dethiok 432 

Doctrine of New York Courts 438 

Separation of law and fact in United States 435 



CHAPTER Xn. 

DtmxB OF ImuBiva Sa.fbtt. 



Exceptions to general limits of duties of caution . . . . 487 

Bylands v, Fletcher . , . . . . . . 488 

Exception of act of God 444 

Act of stranger, &c. . . . . 446 

Authorized works . • . . > • • • . • . • 446 

G. W. B. Co. of Canada r. Braid 447 

Other cases of insurance liabilitj.. 448 

Duty of keeping in cattle 449 

Dangerous or vicious animals 450 

Fire, firearms, Ac 451 

Duty of keeping in fire 462 

Carrying fire in locomotiTes • . 458 

Fire-arms : Dixon v. Bell . . • • . . 454 

Explosives and other dangeroos goods 455 

Uas escapes ■• •* •• •• •• •• •• •• 4oo 

Poisonous drugs : Thomas v. Winchester 456 

Difficulties felt In y-^ngianA : George r. Skivington 458 

Duties of occupiers of buildings in respect of safe repair . . 459 

Modem date of the settled rule : Indermaur i^. Dames . . 460 

Persons entitled to safety 462 

Duty in respect of carriages, ships, fto . . 464 

limits of the duty 466 

Volenti non Jit iniwria 466 

Duty towards passers-by .. , ,, •• 467 



XXIY ^ TABLE OF CONTENTS. 

PAOX 

Presypiptio^.of negiUgenoQ (res ipsa loguitur) 468 

Distiriction^ ^ . . ,, . . 470 

Position of Uoeiuees . • 471 

Hoflt.^d g^^t . , 473 

liability of Uoensor for ** ordinary negligence " 474 

Owner not in oocapation ... . . . . . , 474 



CHAPTER XTTT. 

Sfbohl RaLinoHS of Coxtbaot jjxd Tobt. 

Original theory of forms of action 476 

Actions on the case 476 

Causes of action : modem classification as founded on contract or tort 477 
Classes of questions arising ... . . 478 



1. Alternative Forms of Remedy <m the tame Cause of Actum, 

One cause of action and alternative remedies 478 

Common law doctrine of misfeasance 478 

Special duty of carriers and innkeepers by ** custom of the realm " . . 481 
Alternative of form does not affect substance of duty or liability . . 482 

In modem law obligation wholly in contract 484 

Limits of the rule 485 

2. Coneurrent Causes of Action. 

Cases of tort, whether contract or no contract between same parties 486 

Contract " iniplied in law " and waiver of tort 488 

Implied warranty of agent's authority : CoUen v. Wright . . . . 489 

Concprrent pauses of action against di^erent parties 490 

Dalyell v. Tyrer 490 

Foulkes V. Metropolitan Dist. R. Co 490 

Causei} of action in contract and tort at suit of different plaintiffs . . 491 

Altoi^ v. Midland B. Co. ; qu. whether good law 492 

Wintepbottom v. Wright, Ac 496 

Concurrence of breach of contract with delict in Roman law . . 497 

3. Causes of Action in Tort dependent on a Contract not between the same 

Parties, 



Causei} of action dependent on a collateral contract 
What did Lumley r. G^e decide ? 
Special damnge . . . • . . 

Malice ... 

Question of remoteness of damage 
Motive as an ingredient in. the wrong 
American doctrine . . « . . , 



497 
497 
498 
499 
600 
501 
602 



. 1 



TABI^ OF CONTENTS. XXV 

PAOB 

Wilfnl interference with contract 602 

Damage to stranger by breach of contract 603 

Poeition of receiver of erroneous telegram: different yiews in 

England and United States 604 

The conflict considered on principle 606 

Uncertainty still remaining in English doctrine . . . . . . 6C8 

Character of morally innocent acts affected by extraneous contract. . 608 

4. Jfeature of Damage and other ineidmit of the Remedy. 

Measure of damages 610 

Bule as to consequential damage 611 

Penal character of action for breach of promise of marriage . . . . 612 
Contracts on which executors cannot sue « . . . . . . . 618 



APPENDIX. 

A. — Historical note on the classification of the forms of personal 

action. (By Mr. F. W. Maitland.) 616 

B.— Employers* Liability Act, 1880 623 

C. — Statutes of Limitation : 

21 James L, o. 16, ss. 3, 7 .. .. 630 

4 & 6 Anne, c. 3, s. 19 . . . . . . . . . . . . 631 

Id & 20 Vict. c. 97 (Mercantile Law Amendment Act), s. 12. . 632 

D. — Contributory negligence in Boman law . . . . 633 



INDIAN CIVIL WRONOS BILL. 

Pbefatobt kotb 636 

Qenskalpabt — 

Chap. I. G^eral principles of liability . . . . . . 641 

II. (General exceptions . . ' 660 



SSXOIAL PAST — 

III. Assault and false imprisonment 

rV. Defamation 

V. Wrongs against g^ood faith 
VL "Wrongs to property 
VII. Nuisance . . ' 

VIII. Negligence 

IX. Of damages for civil wrongs 



661 
663 
674 
679 
684 
690 
601 



( xxvi ) 



Pp. 94, 181- ADDENDA. 

As to the impoflition of etatatory dnties not neoeiaarily giving rights of 
private action for damage sunered through breach of such duties, see 
farther Sauw/en y. Holbom District Board of JForka, '95, 1 Q. B. 64, 
64 L. J. Q. B. 101, 15 R, Jan. 381. 

P. 47— 

I have not been able to find an^ report accessible in England of the 
New York case here referred to in which Coultas^ictLae was not followed. 
An abstract is giyen in 9 Gen. Dig. (Rochester, N. Y. 1894} 2249 a. 

P. 143— 

Corporation of Bradford v. Pickles is now reported on appeal, '95, 1 Ch. 
145, 64 L. J. Ch. 101. Lord Wenslejdale's dictum in Ckasemore v. 
Richards was approyed in express terms bj Lindley and A. L. Smith, 
L.J J., and in otfect, though not so strongly, by Lord Herschell. In 
the case at bar the utmost that was alleged against the defendant was 
that he intended to divert underground water from the springes that 
supplied the plaintiff Ck)rporation's works, not for the benefit of his 
own land, but in order to drive the Corporation to buy him off. This, 
as pointed out by Lord Herschell and A. L. Smith, L.J., might be 
unneighbourly conduct, but could not be called malioious, the main 
object being not harm to the plaintiff but gain to the defendant. 
The actual decision, therefore, does not categorically deny the doctrine 
of '* animus vicino nocendi," but all the judges who took part in the 
case have expressed themselves against it so strongly that the point 
may be practically deemed settled. The judgment Mow was reversed 
on the construction of a special Act, the Court of Appeal holding that 
it did not restrain the defendant's general rights. 

P. 201— 

The rule as to burden of proof in cases of negligence was held not to 
apply to a case where the defendant had maintained a dangerous 
nuisance, and the plaintiff, a young child, had suffered such harm as 
that nuisance (a row of spikes on the top of a low wall) was likely to 
cause. Fenna v. Clare ^ Co., '95, 1 Q. B. 199. 

P. 254- 

As to payment of money into Court with an apology in actions for libel 
contained in a newspaper, add reference to the amending Act, 8 & 9 
Vict. o. 75, and Dunn v. Devon^ ^c. Newspaper Co,, '95, 1 Q. B. 211, it. 

P. 298— 

Alabaster v. Harness has been affirmed in the Court of Appeal, '95, 
1 Q. B. 339, 64 L. J. Q. B. 76. 

P. 828- 

That a person holding goods as a warehouseman or the like may make 
himself liable as a bailee by attornment, and be estopped as against 
the person to whom he has attorned, notwithstanding evident want of 
title, see Henderson v. Williams, '95, 1 Q. B. 521, C. A. 

Pp. 810, 877, 586— 

Zemmon v. Webb has been affirmed in the House of Lords, '96, A. C. 1. 

Pp. 880, 885— 

The jurisdiction exbting since Lord Cairns' Act to award damages in 
lieu of an injunction does not carry wiih it a discretion to refuse an 
injunction in cases, especially of oontinuing nuisance, where the 
plaintiff is entitled to that remedy under the settled principles of 
equity. Sheifer v. City of London EUctric Lighting Co,, '95, 1 Ch. 287, 



INDEX OF CASES. 



Aaditl Hizxx V. T^ duuider 

Makarji, 671. 
Abraham «. Beynoldfi, 473. 
Abrahams v. Deakin, 84. 
Abrath v. N. 1^. Bail. Co., 288, 

677, 678. 
Ackers v. Howard, 112. 
Acton V, Blondell, 139, 140, 143. 
Adams v. L. & Y. Rail. Co., 431. 
Adamson v. Jarvis, 183, 184, 649. 
Addle V. Western Bank of Soot- 
land, 86. 
Aginoourt, The, 114. 
A£ibaster v. Harness, 298, Add. 
Alderson v, Waistell, 123. 
Aldred's Case, 368, 686. 
Aldrich v. Wriflrht, 160. 
Alexander v. if. E. Rail. Co., 240. 

V, Jenkins, 228. 

■ V, Southej, 319. 

Allbatt V. General Council of 

Medical Education, 110, 249. 
Allen V. L. & S. W. Rail. Co., 83, 
648. 

V. Martin, 358. 

Allinson v. General Council, &o., 

111. 
Allsop V. Allsop, 224. 
Alton V. M. RaU. Co., 492, 493, 

494, 496, 613. 
Amann v. Damm, 673. 
Ambergate v. M. Rail. Co., 849. 
Ames V. Union Rail. Co., 493. 
Anderson v, Gorrie, 104. 
Anderson r. Raddiffe, 336. 
Angle f . Chicago, St. Paul, &c. 

Rail., 602. 
Angus V. Qifford, 266, 270. 
Anuionj v. Hanej, 347. 
Applebee v. Peroj, 461. 
Arlett V. Ellis, 378. 
Armory «. Delamirie, 330, 342. 
Armstrongv. L. & Y. RaU. Co., 693. 
Arnold «. Molbrook, 361. 
Ash V. Dawnay, 366. 
Ashbyu. White, 112, 171, 298, 678. 
Asher v. Whitlock, 330. I 



Ashworth v. Stanwix, 94. 
Atkinson 9. Newcastle Waterworks 

Co., 24, 181, 182. 
Attack V. Bramwell, 364. 
A.-G. 9, Cambridge Consumers' 
Gas Co., 381. 
■■ V. Colney Hatch Lunatic 
Asylum, 385. 

9. Gas light and Coke Co., 

119. 

r. Homer, 336. 

9, Manchester, Corporation 

of, 382. 
9. Metropolitan Rail. Co., 

117. 
9. Sheffield Gas Co., 381. 

9, Tomline, 136. 

Austin 9. Bowling, 206. 

r. G.W.RaU. Co., 483,486. 

Australian Newspaper Co. v. Ben- 
nett, 234. 

Aris 9. Newman, 314. 
Aynsley v. Glover, 373, 374. 



B. 



Backhouse f . BoDomi, 172, 193. 

Baddeley 9. Earl Granville, 466, 
625. 

Baird f. Wells, 111. 

Baker «. Carrick, 247. 

9. Sebright, 316. 

Baldwin 9, Gasella, 451. 

9. Elphinston, 231. 

Ball, Ex parte, 186, 187. 

9. Ray, 370. 

BaUaoorki^ Mining Co. r. Harri- 
son, 139. 

Ballantine 9. Golding, 192. 

Ballard 9, Tomlinsoo, 140, 444. 

Balme 9, Hutton, 108, 318. 

Baltimore and Ohio R. R. Co. r. 
Baugh, 96. 

Bamford 9. Tumley, 368, 869, 686. 

Bank of New Sou^ Wales 9. 
Owston, 83. 

Barber v. Fenley, 363. 



xxvui 



INDEX OF CASES. 



Barker r. Braham, 69, 206. 

V. Furlong, 318, 322, 332. 

BameB v. Ward, 162, 467, 699. 
Bamett v. Guildford, 336. 
Barry r. Groskej, 260. 

Barton v. Taylor, 109. 

Barton's Hill Coal Co. v. Reid, 71. 

Barwick f. English Joint Stock 

Bank, 70, 86, 282, 284, 646. 
Bastard v. Hancock, 621. 
Batchelor r. Fortescue, 473. 
Baton's Case, 366, 379. 
Bayley v. M. S. & L. B. Co., 81, 

82, 648. 
Beaslej v, Roney, 62. 
Beaumont v. Greathead, 170. 
Becher t;. G. E. Rail. Co., 492. 
Beckett r. M. RaiL Co., 362, 684. 
Beckham r. Drake, 613. 
BeddaU v. Maitland, 343, 344. 
Beddow v. Beddow, 178. 
Bell V. M. RaU. Co., 47, 176. 
Benjamin 9. Storr, 363, 684. 
Benton v. Pratt, 286, 602. 
Bemina, The, 413, 420, 436, 692. 
Berringer v. G. E. R. Co., 490. 
Berry v. Da Conta, 176, 613. 
Bessey v. Olliott, 130. 
Betts v. Gibbins, 183, 184, 649. 
Bhug^an Meetha v. Kasheeram 

GoTurdhun, 663. 
Bhyran Pershad v. Isharee, 662. 
Biddle r. Bond, 324. 
Bird V. Holbrook, 161, 161. 

r. Jones, 203. 

Biscoe V, G. E. Rail. Co., 118, 119, 

664. 
Bishop V, BaUds Consolidated Co., 

279. 
Black V. Christohurch Finance Co., 

463. 
Blades r. Hign, 334, 347. 
Blad's Case (Bladir. Bamfield), 188, 

190. 
Blair v. Bromley, 87. 
Blake v. Barnard, 198. 

v. M. Rail. Co., 61, 63. 

Blakemore v. Bristol and Exeter 

Rail. Co., 473. 
Blamires r. L. & T. Rail. Co., 182. 
Blisset P. Daniel, 112. 
Bloodworth r. Gray, 227. 
Blyth V, Birmingham Waterworks 

Co., 36, 42, 392, 409. 
Boden v. Roeooe, 349. 
Bolch V. Smith, 472, 601. 
Bolingbroke v. Swindon Local 

Board, 84. 
Bonnard r. Ferryman, 179, 266. 



BorrowB «. Ellison, 193. 
Boson V. Sandford, 621. 
Boston & Albany R. R. Co. v. 

Shanly, 466. 
Bound r. Lawrence, 628. 
Bourne v, Foebrooke, 330. 
Bo wen v. Anderson, 887. 
V. HaU, 297, 498, 602, 608, 

678. 
Bower v. Peate, 471. 
Bowker v. Evans, 65. 
Bowyer v. Cook, 346, 366. 
Box 9. Jubb, 446. 
Boxsius V, Gk)blet Fr^res, 231. 
Bradford, Corporation of, r. Pickles, 

143, Add. 
Bradlaugh i;. Gossett, 109. 

V, Newdegate, 298. 

Bradshaw v. L. & Y. Rail. Co., 61. 
Brannigan v, Robinson, 623. 
Bridge v. Grand Junction Rail. 

Co., 419, 421, 429. 
Bridges v. N. L. Rail. Co., 402, 

407. 
Briggs V. Union Street Rail., 430. 
Brinsmead r. Harrison, 182, 320. 
Bristol & W. of EngUnd Bank r. 

M. Rail. Co., 327. 
British Mutual Banking Co. f. 

Chamwood Forest R. Ck>., 86, 87. 
British S. Africa Co. v. Companhia 

de Mozambique, 189, 190. 
Broadbent v. Ledward, 618. 
Broder v. Saillard, 368, 370. 
Bromage v. Prosser, 230. 
Brooker v. Coffin, 226. 
Broughton v. Jackson, 207. 
Brown r. Boorman, 480. 

V, Eastern and Midlands 

Rail. Co., 47. 

r. Kendall, 123, 126, 130, 

134, 443, 666. 

V, Notley, 358. 

Browne r. Dawson, 346. 
Brownlie t^. Campbell, 267. 
Brunsden r. Humphrey, 178. 
Brunswick, Duke of, v. King of 

Hanover, 103. 

■ V. Harmer, 231. 

Bryant r. Herbert, 16, 618, 620,622. 

V. Lefever, 372. 

Bubb r. Yelverton, 316. 
Bucher v. Cheshire, 166. 
Buckley v. Gross, 331. 
Buddies. Willson, 481. 
Bullers v, Dickinson, 376. 
Buhner v. Buhner, 62. 
Bardett r. Abbot, 348. 
Burger r. Carpenter, 602. 



INDEX OF CASES, 



XXIX 



BnrgeBS v. Bnrgefls, 145. 

V. G^^ay, 74. 

Burling r. Read, 376. 
Bumand r. Haggis, 60. 
Bums V. PonlBoiiy 78. 
Boron v. Denman, 101. 
Bnrroughee v. Bayne, 312, 319. 
BiuTowes V, Lock, 180, 270, 271. 
Burrows r. Erie Rail. Co., 434. 
Bush V. Steinman, 73. 
BuUer r. M. S. & L. Bail. Co., 338. 
Butterfield v. Forrester, 419, 420, 

593. 
Byrne v. Boadle, 468, 600. 
Bywell Castle, The, 430, 590, 594. 



C. 



Cabell 9, Vaughan, 521. 
Calder v. Halket, 105. 
Caledonian Kail. Co. v. Walker's 

Trustees, 116. 
Calliope, The, 465. 
Cameron 9. Nystrom, 75, 93. 
Campbell V. Spottiswoode, 236, 237. 
Cape 9. Scott, 349. 
Capital and Counties Bank v, 

Henty, 230, 233, 564, 566, 568. 
Carey v. Ledbitter, 369. 
Carpue r. L. & B. Rail. Co., 400. 
Carrington r. Taylor, 296. 
Carslake r. Mapledoram, 227. 
Carstairs v. Taylor, 446. 
Carter r. Drysdale, 528. 

V. Thomas, 168. 

Cartwright, Re, 314. 

Castle V. Duryee, 127. 

Central Rail. Co. of Venezuela «. 

Kisch, 277. 
Chaffers r. Gk)ldsmid, 298. 
Chamberlain f^. Boyd, 224. 

V. Hazelwood, 212. 

V. Williamson, 57, 618, 

621. 
Chapman «. Auckland Union, 380. 

V. Rothwell, 462, 599. 

Charles r. Taylor, 92. 

Chasemore v, Richards, 139, 143, 

441, 556, Add. 
Chatham Furnace Co. v. Moffatt, 

265. 
Chicago M . & S. Rail. Co. v. Ross, 

96. 
Chifferiel v. Watson, 173. 
Child 9. Heam, 427, 461. 

V. Sands, 521. 

Chinery v. Viall, 325, 483. 
Christophenon v. Bare, 200. 



Chunder Narain Singh r. Brijo 

Bullub Gk>ovee, 551. 
City of London Brewery Co. v, 

Tennant, 372, 373. 
lOlark p. Chambers, 40, 43, 44, 45, 
425, 427, 544. 

V. Molyneux, 248, 253. 

V. Woods, 107. 

Clarkson v. Musgrave, 527. 
Clayards r. Dethick, 432, 434, 594, 

595. 
Cleary v. Booth, 113. 
Cleather v. Twisden, 87. 
Clements 9. Flight, 618. 
V. L. & N. W. R. Co., 

524. 
Cliffr. M. RaU. Co.,591. 
CloBson V. Staples, 290. 
dough r. L. & N. W. Rail. Co., 

261. 
Clowes V. Staffordshire Potteries 

Waterworks Co., 385. 
Cobb r. G. W. RaU. Co., 41, 404. 
Cockle V. S. E. Rail. Co., 406. 
Colchester, Mayor of, v. Brooke, 

419. 
Cole r. Turner, 196, 199, 561. 
CoUard v. Marshall, 179, 255. 
Collector of Sea Customs v. Funniar 

Chithambaram, 561. 
Collen r. Wright, 68, 489. 
Collins r. Evans, 184, 263. 
Collis V. Selden, 466, 496. 
Commissioners of Sewers v. Glasse, 

377. 
Commonwealth «. CoUberg, 147. 

'' V. Pierce, 201, 396. 

Consolidated Co. v» Curtis, 322. 
Cook V. N. Met. Tramways Co., 528. 
Cooke v. Forbes, 381. 
Cooper V. Crabtree, 358. 

V. Willomatt, 321, 324. 

Corby v. Hill, 342, 467, 472, 699. 
Comfoot V. Fowke, 281. 
Cornish v. Accident Insurance Co., 
165, 683. 

r. Stubbs, 339. 

Coryton v. Lithebye, 520. 
Cotterell v. Jones, 291. 
Cotton V, Wood, 397, 398, 591. 
Couch V. Steel, 181. 
Coulter V. Express Co., 434. 
Coup^ Co. V. Maddiok, 317. 
Courtenay v, Earle, 480. 
Coward v. Baddeler, 199, 561. 
Cowley V. Newmarket Local Board, 

182. 
Cox V, Burbidge, 40, 41, 449, 544. 
V. Ot, W. RaU. Co., 524. 



INDEX OF CASES. 



Gozhead 9. Riobards, 247, 673. 
Crabtaree v. Bobinaon, 861. 
Oracknell v. Corporation of Thet- 

ford, 118. 
Crafter r. Metrop. Bail. Co., 401, 

409. 
Crippa V. Judge, 623. 
Croft t'. Alison, 78. 
CroBsley v. Ligbtowler, 367, 688. 
Crowhurst v, Amersham Burial 

Board, 444. 
Crombie v, Wallaend Local Board, 

194. 
Crump p. Lambert, 366, 369. 
Cullen V, Thomaon's Tmatees and 

Kerr, 67. 
Cundj V. Lindsay, 301, 609. 
Cutts V. Spring, 330. 

D. 

Dalston v, Janson, 480. 
Dalton V. Angus, 336, 372. 

V. 8. E. Rail. Co., 63. 

Dftlyell r. Tyrer, 74, 490. 
Dan by v. Lamb, 518. 
Dand v. Sexton, 310. 
Daniel v. Ferguson, 381. 

V. Met. RaU. Co., 431. 

Parley Main Colliery Co. r. Mit- 

cbeil, 172. 194, 642. 
Dash wood v. Magniao, 316. 
Davey r. L. & S. W. Rail. Co., 406. 
Davies, Ex parte, 324. 

V. Mann, 419, 420, 421, 693. 

V. Marshall, 149. 

V, Snead, 246, 674. 

— V. Solomon, 224. 

9. Williams, 376. 

Davis V. Duncan, 238. 
^— - V. Gardiner, 226. 

V. Saunders, 132. 

V. Shepstone, 239, 248. 

Dawkins v. Antrobns, 111, 653. 

V. Lord Paulet, 243. 

r. LordRokeby, 106, 243. 

V. Prince Edward of Saxe- 

Weimar, 106, 243. 
Day 9. Brownrigg, 145, 287. 
Dean «. Bennett, 111, 112. 

1^. Peel, 214. 

r. St. Paul Union Dep6t Co., 

466. 
Dean of St. Asaph's Case, 129. 
Deane v, Clayton, 160. 
Deggr. M. Rail. Co., 93. 
Denison v. Ralphson, 619. 
Denton r. G. N. Rail. Co., 273, 

283, 486, 504. 



Derry v. Peek, 269, 260, 264, 269, 

270, 271, 273, 274, 282, 606, 674. 
De Wahl v. Braune, 49. 
Dewey v. White, 167. 
Dhurmchnnd v, Nabhaee Gk>obal- 

chund, 663. 
Dicker r. Popham, 374. 
Dickeson r. Watson, 130. 
Dickinson v. N. £. Rail. Co., 61. 
Dickon v. Clifton, 480. 
Dicks V. Brooks, 286. 
Dickson v. Dickson, 602. 
r. Renter's Telegram Co., 

603, 608. 
Ditcham v. Bond, 212. 
Dixon V. BeU, 128, 426, 427, 464, 

466, 467, 468, 697. 
Dobell 9. Stevens, 276. 
Dobree v. Napier, 191. 
Donald r. Suckling, 326, 680. 
Donovan v. Laing, 76. 
Doss V. Secretary of State in Conn- 

oU of India, 100. 
Doughty V. Firbank, 624. 
Doulson 9. Matthews, 190. 
Doyley v, Roberts, 228. 
Drake, Ex parte, 320. 
Dreyfus v, Peruvian Guano Co., 

173, 380. 
Dubliu, &c., RaiL Co. v. Slattery, 

406, 421. 
Du Boulay v. Du Boulay, 146. 
Duckworth v. Johnson, 63. 
Dunn 9. Birmingham Canal Co., 

447. 
9. Devon, &c. Newspaper Co., 

Dunston 9. P&terson, 108. 
Dyer 9. Hargrave, 276. 



E. 



Eager 9. Grimwood, 214. 
£ccleeia«tical Conomissionen v. 

Kino, 374. 
Eckert 9. Long Island Rail. Co., 

434. 
Edgington 9. Fitzmaurioe, 260, 

262, 269. 
Edwards 9. L. & N. W. RaU. Co., 
83 

9. M." Rail. Co., 289. 

Edwiok 9. Hawkes, 343, 344. 
EUas 9. Snowden Slate Quarries 

Co., 314. 
Elliott, Ex parte, 187. 

9. HaU, 464, 698. 

EUis 9. G. W. Rail. Co., 406. 



IKDEX OF CASES. 



Ellis V. Loftofl Iron Co., 41, 449. 

— V, Sheffield Gas CoDsmnen* 
Co., 69. 

Emblen v. Mjers, 176, 602. 
Emmens r. Pottle, 231. 
England r. Cowley, 820. 
Entio V. Cairington, 10, 101, 307. 
European and Australian Royal 

Hful Co. V. Royal Mail Steam 

Packet Co., 324. 
Evans v. Bicknell, 278. 

V. Edmonds, 269. 

V. Walton, 213. 

Eyre, Ex parte, 87. 

F. 

Fairhnrst v, Lirerpool AdelpM 

Loan Ass., 50, 61. 
Falyey v, Stanford, 169. 
Farrant v. Barnes, 465, 597. 
Farwell v. Boston and Worcester 

Railroad Corporation, 71, 89, 91, 

548. 
Fay f>. Prentice, 364, 586. 
Feltham r. England, 92. 
Fenn r. Bittleston, 326, 329. 
Fenna v. Clare, Add. 
Ferg^usson r. Earl of Einnonl, 541. 
Filbum V, Royal Aquazium Co., 

451. 
Filer v. N. T. Central R. R. Co., 

434. 
FilHter v, Phippard, 453. 
Fine Art Society v. Union Bank of 

London, 318. 
I Finlay r. Chimey, 55, 513, 521. 
Firbank's Executors v. Humphreys, 

262. 
Firth V, Bowling Lx>n Co., 444. 
Fisher v. Jackson, 112. 
' V. Keane, 111, 553. 
Fitz V. Hobson, 584. 
Fitzjohn r. Maokinder, 205, 289. 
Fivaz V. Nicholls, 166. 
Fleming v. Dollar, 240. 
V. Hislop, 367, 380. 

V. M. 8. k L. Rail. Co., 

484, 508, 522. 

Fletcher, Ex parte, 846. 

i;. Bealey, 382. 

V. Rylands, 438, 442, 447. 

r. Smith, 441. 

Flewster v. Royle, 206. 

Fogg V. Boston & Lowell Rail. Co., 

54. 
Forsdike v. Stone, 175. 
Fouldes V. Willoughby, 310, 319. 
Foulgcr V. Newoomb, 228. 



Foulkes 9. Met. D. Rail. Co., 464, 
465, 487, 490, 491, 492, 493, 508, 
697. 

Francis v. Cockrell, 460, 464, 600. 

Franoonia, The, 62. 

Franklin v. S. E. Rail. Co., 63. 

Frar v. Blackburn, 105. 

Freke v. Calmady, 314. 

Fremantie v. L. k K. W. Rail. 
Co., 447. 597. 

Fritz r. Hobson, 363, 371, 380. 

Frogley v. Earl of Lovelace, 338. 

a. 

Callagher v. Piper, 92. 

Oandy v, Jubber, 387, 589. 

Ganesh Singh v. Ram Raja, 548. 

Gardner v. Michigan Central R. R. , 
402. 

Garland r. Carlisle, 348. 

Gamett v. Bradley, 171. 

Garret r. Taylor, 217. 

Gas Light & Coke Co. v. Vestry of 
St. Mary Abbott's, 120. 

Gaunt V. Fynney, 382. 

Gautret r. Egerton, 471, 472. 

Gay lard «. Morris, 310. 

Greddis i;. Proprietors of Bann Re- 
servoir, 116, 118. 

Gee V. Met. Rail. Co., 156, 431, 594. 

Gehanaji bin Kes Patil r. Ganpati 
bin Liakshuman, 584. 

George and Richard, The, 89, 61. 

r. Skivington, 458, 496. 

Gibbons r. Pepper, 1 33. 

Gibbs r. Guild, 195. 

V. G. W. Rail. Co., 524. 

Gibson r. Eyans, 233. 

Girish Chunder Das v, Gillanden 
k Co., 545. 

GladweU v. Steggall, 479, 482. 

Glasier v. Rolls, 265. 

Glasspoole v. Young, 108, 348. 

Gledstane v. Hewitt, 618. 

Gloucester Grammar School Case, 
137. 
I Glover r. L. & S. W. Rail. Co., 35. 

Goff V. G. N. Rail. Co., 82. 

Goffin V. Donnellv, 243. 

Goldsmid v. Tunbridge Wells Im- 
provement Commissioners, 382. 

G(X>d8on V. Richardson, 358. 

Goodwin v. Cheveley, 350, 450. 

Gk>rham v. Gross, 442, 471. 

Gorris r. Scott, 24, 45, 182. 

Gosdcn V. Elphick, V06. 

Graham v. Peat, 330. 

Grainger r. Hill, 203. 



xxxu 



INDEX OF CASES. 



Grand Trunk lUil. of Canada if. 

Jennings, 64. 
Gray t>. Pollen, 68. 
G. W . Rail. Co. of Canada v. Braid, 

447, 696. 
Green r. Greenbank, 483. 
Greene v. Cole, 312. 
Greenland v. Chaplin, 37. 
Greenslade v. HaUiday, 379. 
Greenwood v, HomMT, 374. 
Gregory v. Duke of fironswick, 
292, 297. 

V. Piper, 77, 647. 

Griffin v, Coleman, 204, 206. 

Griffiths V. Dudley, 624. 

V. London & St. Katharine 

Dooks Co., 93. 
Grinham v. Willey, 206. 
Grinnell v, WeUs, 214, 216, 689. 
Guille V, Swan, 34. 
Gully V. Smith, 23. 
Gwinnell v. Earner, 387. 

H. 

Hadleyir. Baxendale, 27, 611, 612. 
Hailes v. Marks, 207. 
Halford v, E. I. Bail. Co., 691. 
Hall v. Feamley, 133. 

r. Hollander, 216. 

Halley, The, 76, 188, 189, 190. 
Halliday f^. Holgate, 326. 
Halsey v. Brotherhood, 284, 286. 
Hambly v. Trott, 66, 66, 619, 620. 
Hamilton v. Pandorf, 446. 
Hammack r. White, 26, 397, 398, 

690, 691. 
Hammersmith Rail. Co. v. Brand, 

117, 463. 
Hardman v. Booth, 609. 
Harman r. Johnson, 87. 
Harper v. Charlesworth, 330. 

V. LuflRdn, 213. 

Harris v. Brisco, 298. 

r. De Pinna, 372, 376. 

V, Mobbs, 37, 363. 

Harrison r. Bush, 248. 

V. Duke of Rutland, 170, 

308. 
' V, South wark & Yauxhall 

Water Co., 117, 366. 
Harrop 9. Hirst, 336, 363, 366, 371, 

686. 
Hart r. Gumpaeh, 243. 

V. Wall, 233. 

Hartley v. Cummings, 212. 

V, Herring, 229. 

Harvey v. Brydges, 346. 

V. Dunlap, 127. 

V. Har?ey, 348. 



Haskin v. R(^ster, 602. 
Hatchard v. Mege, 60. 
Haycraft 17. Creasy, 261. 
Hayes v. Michigan Central Rail- 
road Co., 38. 
Hayman v. Gk>remor8 of Rugby 

School, 112. 
Hayn f^. Culliford, 464, 466. 
Hayward f . Hay ward, 260. 
Healdv. Carey, 321. 
Heaven p. Pender, 390, 391, 468, 

463, 641. 
Hebditch r. Macllwaine, 232, 248, 

263. 
Hedges v. Tagg, 214. 
Hedley v. Pinkney & Sons' S. S. 

Co., 92. 
Helsham 9. Blackwood, 241. 
Henderson v. Williams, Add, 
Hendriks v. Montagu, 288. 
Hen wood v. Harrison, 236, 238. 
Hepburn v. Lordan, 381. 
Hermann Loog r. Bean, 179. 
Heske v. Samuelson, 623. 
Hetherington v. N. E. Rail. Co., 

63. 
Hewitt V. Isham, 340. 
Hill f. Bigge, 102. 

I V, New River Co., 37, 46, 644. 

Hillard v, Richardson, 73. 
Hinde r. Bandry, 671. 
Hiort r. Bott, 299, 316, 318, 320, 
679. 

V. L. & N. W. Rail. Co., 320. 

Hogg V. Ward, 204. 

Hole p. Barlow, 369. 

Hoiford r. Bailey, 333, 336, 659. 

Hollins r. Fowler, 10, 299, 301, 

318, 319, 321, 610, 681. 
Holmes v. Mather, 26, 122, 133, 
162, 166, 443. 

r. N. E, Rail. Co., 462. 

V. Wilson, 346. 

Honywood v, Honywood, 316. 
Hope V. Evered, 206. 
Hopkins v, G. N. R. Co., 336. 
Home V. M. RaU. Co., 611, 612. 
Horsfall v. Thomas, 276. 
Hotchkys, Re, 314. 
Houldenr. Smith, 106. 
Houldsworth v. City of Glasgow 

Bank, 86, 282. 
Hounsell f;. Smyth, 472, 601. 
Howard v. Shepherd, 497. 
Howe V. Finch, 624. 
Hubert. Steiner, 191. 
Huckle r. Money, 176. 
Hughes V. Maofie, 426. 
V. Percival, 471. 



INDEX OF CAJ3ES. 



XXXIU 



Hnrnphries r. Gonsins, 442. 
HurdmazL v. N. E. Rail. Co., 140, 

442. 
Hurst V, Taylor, 467. 
Hutchins v. Uutchins, 294. 
Hyama v. Webster, 67. 
Hyde v. Graham, 338, 341. 
Hydraulio EDgineerixig Co. v. 

MoHaffie, 512. 
Hyman v. Nye, 466. 



I. 



Ibbotson V. Peat, 296. 
Blidge V, Gk)odwiB, 544. 
Ilott V. Wilkes, 151. 
Inchbald v. Barringfton, 370. 
Indermaur v. Dames, 460, 461, 462, 

466, 598. 
Inderwick 9, Snell, 111, 552. 
Lines V, Wylie, 199. 
Irwin V. Dearman, 215. 
Ivay 9. Hedges, 473. 



J. 



Jackson v. Adams, 225. 
Jacobs V. Seward, 327. 
James v. Campbell, 132. 

V. Jolly, 573. 

Jeffries V, G. W. RaU. Co., 330, 

331. 
Jenner r. A* Beckett, 239. 
Jennings r. Randall, 50, 483. 
Jenoure v. Delmege, 244, 253. 
Jina Ranchhod r. Johhk GheM, 

585. 
Job V. Potton, 314, 328. 
Joel r. Morison, 78. 
John V. Bacon, 460. 
Johnson r. Diprose, 305. 

V, Emerson, 290. 

V. Lancashire & Yorkshire 

Rail. Co., 326. 

V. Lindsay, 75, 93. 

<?. Pie, 60, 63. 

V. Stear, 325. 

Johnstone v. Sntton, 109. 
Junes V. Bird, 396. 

V, Blocker, 502. 

V. Boyce, 432, 434. 

r. Chappell, 313, 363, 386. 

V. Corporation of Liverpool, 

74. 
V. Festiniog Rail. Co., 463, 

597. 

P. 



Jones V. Foley, 343. 

V. Grooday, 180. 

1;. Hough, 321, 679. 

V, Jones, 376. 

r. Powell, 368. 

V. Starly, 502. 

Jordin v. Crump, 160. 

K. 

Kane v. N. Central Rail. Co., 435. 
Karim Buksh r. Budha, 585. 
K4shir&m Krishna v. Bhadu 

B&p(iji, 567. 
Kearney v. L. B. &S. C. Rail. Co., 

469, 600. 
Keeble v, Hickeringill, 142, 218, 

296, 297. 
Keen v. Henry, 76. 

V. MUiwall Dock Co., 526. 

Keighley vBell, 109. 

Kelk V. Pearson, 373, 380. 

Kellard v, Rooke, 628. 

Kelly V. Sherkxsk, 170, 175, 288. 

r. Tinling, 238. 

Kemp V. NeviUe, 105. 

Kenyon v. Hart, 308. 

Kettle 9. Bromsall, 518. 

Kiddle v. Lovett, 525. 

Kimber v. Ytcba Association, 250, 

251. 
King V. London Improved Cab Co., 
76. 

V, Pollock, 456. 

Kirki?. Gregory, 168, 299, 311. 

V. Todd, 66. 

Kleinwort v. Comptoir d'Escompte, 

318. 



L. 



Labouohere r. Whamdliffe, HI, 

653. 
Lambert v. Bessey, 130. 
Lambton v. Meilish, 372. 
Lancashire Waggon Co. v. Fitz« 

hugh, 321. 
Lane v. Capsey, 376. 
Lanfranchi v. Mackenzie, 373. 
Langridge v. Levy, 272, 458, 496, 

577. 
Laughton t^. Bishop of Sodor and 

Man, 247, 253. 
Lax r. Corporation of Darlingfton, 

156, 433, 464, 466, 594. 
Lea V. Charrington, 206. 
Leame t\ Bray, 131. 



INDEX OF CASES. 



Le Mason v. Dixon, 621. 
Lee V. Riley, 41, 449, 544. 
Leeson v. General Medical Council, 

110. 
Leggott f . O. K. Rail. Co., 60. 
Lehigh Zinc and Iron Co. v, Bam- 

ford, 266. 
Le Lieyre v. Conld, 265, 270. 
Lemmon v, Webb, 310, 377, 585, 

Add. 
Lempri^ v, Lange, 51. 
Lewis V. Jjevjf 250. 
Leynian v, Ijatimer, 226, 241. 
Liggins f . Inge, 340. 
Lightly V. Clouston, 489. 
limpus 9. London General Omni- 
bus Co., 84. 
Lingwood v, Stowmarket Co., 380. 
Lister v. Ferryman, 207, 208. 
Little V. Hackett, 74, 413, 420, 

422. 
Lock V. Ashton, 207. 
L. & B. Rail. Co. r. Tnieman, 120, 

121, 554. 
London, Mayor of, v. Cox, 107. 
L. & K. W. Rail. Co. v. Bradley, 

118. 
Longmeid v. HoUiday, 458, 496. 
Lonsdale, Earl of, v. Nelson, 364, 

377, 378, 586. 
Lord V. Price, 317. 
Losee v. Buchanan, 442, 454. 

V. Clute, 466. 

Lovell 9. Howell. 90. 

Low 9. Bouverie,' 265, 271, 273. 

Lowe f . Fox, 52. 

Lows V. Telford, 343, 344. 

Lowther v. Earl of Radnor, 105. 

Luby V. Wodehouse, 102. 

Lumley o. Gye, 58, 211, 212, 217, 

218, 297, 497, 498, 499, 501, 502, 

503, 578. 
Lyde v. Barnard, 279. 
Lyell V, Ghmffa Dai, 126, 556, 597. 
Lynch v. Knight, 223, 224, 500. 

I V. Nurdin, 40, 544. 

Lyon V, Fishmongers' Co., 863, 

371, 584. 

M. 

Maodoogall v, EJiight, 250. 
Macfadzen V. Olivant, 211. 
Mackay v. Commercial Bank of 

New Brunswick, 86, 282. 
Maddison r. Alderson, 88. 
Madras Rail. Co. v. Zemindar of 

CarTatenagaram, 446, 595, 597. 
Malaohy v. Soper, 284. 



Manchester Bonded Warehouse Co. 

V. Carr, 314. 
— — — Mayor of, r. Williams, 

53, 225. 
— South Junction Rail. 
Co. 9. Fullarton. 47. 
Manganv. Atterton, 427, 544. 
Manley «. Field, 214. 
Manzoni v. Douglas, 398. 
Marsh r. Billings, 286. 

V, Keating, 185, 187. 

Marshall v, York, Newcastle, & 

Berwick Rail. Co., 487, 492, 493. 
Marshalsea, The, 107. 
Martin r. G. I. P. R. Co., 492. 

i>. Payne, 214. 

V. Price, 382. 

Marzetti v. Williams, 484. 

Masper v. Brown, 202. 

Maund v. Monmouthshire Canal 

Co., 53. 
May V, Burdett, 451. 
Mayor of ColcheHter v. Brooke, 419. 
Manchester v. Williams, 

53. 
M'Cully V. Clark, 402, 590. 
M'Kenzie v, McLeod, 648. 
M*Manus v. Crickett, 84. 
McGiffen r. Palmer's Shipbuilding 

Co., 623. 
McLaughlin v. Pryor, 74. 
McMahon r. Field, 512. 
McManus 9. Cooke, 341. 
MoPherson v, Daniels, 230, 235. 
Meade's and Belt's Case, 200. 
Mears v. Dole, 442. 

r. L. & S. W. Rail. Co., 317. 

Meghraj v. Zakir Hussain, 650. 
Mellor 9. Spateman, 371. 

V. Watkins, 339. 

Membery v. G. W. R. Co., 152, 153. 
Mennie v. Blake, 312, 334. 
Merest V. Harvey, 175. 
Merivale r. Carson, 237, 239, 570. 
Merryweather v. Nixan, 183. 
Mersey Docks Trustees v. Gibbs, 

54, 87, 116, 541. 
Metropolitan Association «. Petch, 

386. 
Metropolitan Asylum District 9. 

Hill, 119, 120. 
Metropolitan Bank 9. Pooley, 291, 

298. 
|Metrop. Rail. Co. 9. Jackson, 41, 

402, 403. 

9. Wright, 169. 

Meux 9. Cobley, 313. 

Midland Ins. Co. v. Smith, 186. 

Millen 9. Fawdry, 450. 



INDEX OF CASES. 



XXXV 



Miller r. DaTid, 227. 

V. Dell, 194, 820. 

V. Haooock, 463. 

MiUfl, Caae of, 137. 

9. ArmBtrongr, 418, 422, 426, 

436, 692, 693. 

r. QraliAm, 618. 

HiUward v. M. BaU. Co., 624. 
Mitchell V. Cnusweller, 77, 79. 

9, Darley Main Colliery Co. , 

172. 
' V. Rochester Rail. Co., 47, 

Add, 
Moffatt 9. Bateman, 464, 474, 487, 

601. 
Mogul Steamship Co. r. McGregor, 

Low & Co., 138, 143, 179, 218, 

291, 294, 296, 297. 
Montgomery 9. Thompson, 146. 
Moorcock, The, 464, 466. 
Moore 9. Hall, 374. 

V. Metrop. Rail. Co., 82. 

9, Rawson, 372, 376. 

r. Robinson, 304. 

Morgan 9. Lond. Cen. Omnibns 

Co., 628. 
9. Vale of Neath Rafl. Co., 

91. 
Morris 9, Piatt, 127. 
Moses 9, Macferlan, 488. 
Mostyn 9. Falnigas, 102. 
Mott 9. Shoolbred, 386, 688. 
Mouse's Case, 167. 
M. Mozham, The, 188. 
Moyle V. Jenkins, 626. 
Muhammad Ismail Khan 9, Mu- 
hammad Tahir, 667. 
Muhammad Yusuf r. P. & 0. Co., 

649. 
Mullen 9. St. John, 470. 
Mulligan 9. Cole, 233. 
Mulliner r. Florence, 326. 
Mumford 9, Oxford, 386. 
Munday v. Thames Ironworks Co., 

626. 
Munster r. Lamb, 242, 671. 
Murphy 9, Deane, 399. 
Murray 9. Currie, 73, 74. 

9, HaU, 328. 

Musgraye 9. Chung Teeang Toy, 

102. 

N. 

Nash 9. Lucas, 361. 

National Plate Glass Insurance Co. 

9. Prudential Assurance Co., 376. 
National Telephone Co. 9, Baker, 

442. 



Neate 9. Denman, 110. 

Nelson 9. LdTerpool Brewery Co., 

387, 689. 
Newoomb 9. Boston ProteotiTe 

Department, 166. 
Newman 9. Phillipeborg HorBe 

Car Co., 427. 
N. O. & N. E. R. R. Co. 9. Jopee, 

169. 
Newson 9, Pender, 374. 
Newton 9, Harland, 346. 
Nichols 9. Maraland, 122, 446, 

446, 696. 
NilmadhabMookerjeev. Dookeeram 

Khottah, 667. 
Nitro-Glyoerine Case, 126, 134, 

443, 697. 
Norris 9. B:ikrr, 377. 
North Eastera Hail. Co. tr.Wanless, 

402. 
Northampton's, Earl of. Case, 236. 
Netting Hill, The, 611. 
Nugent 9, Smith, 446, 486. 
Nuttall r. Bracewell, 342. 
Nyberg 9. Handelaar, 329. 

O. 

Oakey 9. Dalton, 60. 

Oliver r. Local Board of Horsham, 

182. 
Ormerod r. Todmorden Mill Co., 

342 
lOsborn r. GiUett, 67, 69, 211. 
Osborne 9. Jackson, 624, 628. 
Oxiey 9. Watts, 366. 



P. 



Paley 9, Gamett, 623. 

Palmer 9. Thorpe, 226. 

9. Wick and Pulteneytown 

Steam Shipping Co., 183. 
Pappa 9, Rose, 106. 
Parankusam Narasaya Pantula 9. 

Stuart, 662. 
Pardo r. Bingham, 193. 
Parker 9. First Avenue Hotel Co., 

374. 
Parkes 9. Presoott, 232. 
Parkins 9. Scott, 223,. 236. 
Parlement, Beige, The, 103. 
Pamell r. Walter, 264. 
Parry r. Smith, 466. 
Partridge r. General CounoU, ftc, 

110, 111. 
Parvals 9. Mann&r, 664. 
Pasley r. Freeman, 261, 278. 

c2 



XXXVl 



INDEX OF CASES. 



Pairiok V. Ooleriok, 347, 583. 
Paul V. SammerhayeSy 353. 
Pearoe v. Lanadowne, 528. 
Pease v. Gloahec, 509. 
Peek V, Deny, 180, 264, 269. 
V. Gumej, 66, 180, 260, 274, 

576. 
Pendarvefl r. Monro, 875. 
Pendlebory 9. Greenhalgh, 73. 
PenniDgton v. Brinaop Hall Coal 

Co., 385. 
Penntddook's Case, 364, 379, 388, 

586. 
Perry v. Fitzhowe, 376, 377. 
Perryman r. Lister, 208. 
PetreU The, 89. 
Phillips V, Bamet, 52. 

V. Evre, 102, 188, 189, 190. 

f V. Momfray, 66, 620. 
V. L. & 8. W. Rail. Co., 

169, 174. 
Piokard v. Smith, 460. 
Pickering r. James, 112. 

V, Rudd, 308. 

Piggott r. E. C. Rail. Co., 447. 

Piloher v. Rawlins, 301. 

Pilgrim v. Southampton, &o. Co., 

858. 
Pinchon's Case, 59, 520. 
Pippin V, Sheppard, 479. 
Pittard r. Oliver, 261, 252. 
Pitimiber Doss v, Dwarka, Perahad, 

567. 
Playford v. U. K. Eleotric Tele- 
graph Co., 503. 
Phmmer v. Mayor of Wellington, 

341. 
PoihiU V. Walter, 260, 272, 273, 

574, 576. 
Ponnus&my T^var v. Collector of 

Madura, 542. 
Pontifex v. Bignold, 172. 

V. M. Rail. Co., 522. 

Ponting V. Noakee, 443. 
Potter fr. Brown, 191. 

9. Faulkner, 93, 128. 

Potts V. Smith, 373. 
Poulton V. L. & S. W. Rail. Co., 83. 
Pounder r. N. E. Rail. Co., 404. 
Powell V, Deveney, 40. 

V. Fall, 463. 

Powys V. Blagrave, 314. 
Pozzi V. Shipton, 482, 484. 
Praed v. Graham, 254. 
Pndh&d M&harudra v, A. C. Watt, 

550. 
Ptesland v. Bingham, 375. 
Pretty v. Biokmore, 387, 589. 
Priestley v. Fowler, 88. 



Plroctor V. Webster, 248. 
I^ulUng V. G. E. Rail. Co., 60. 
Pullman r. HiU & Co., 231. 
Purcell v. Sowler, 235, 239, 670. 
Pursell V. Home, 197. 
Pym V, G. N. RaU. Co., 63, 64. 

a. 

Quarman r. Burnett, 74, 460. 
Quartz Hill, &c. Co. v, Beall, 178, 

179. 
9. Eyre, 290. 

R. 

Radley v. L. & N. W. RaU. Co., 

413, 415, 420, 421. 
Ra£Pey 9. Henderson, 340. 
R. Ragun&da Rau 9. Nathamuni 

Thauiam&yyang&r, 551. 
Raj Chunder Roy v. Shama Soon- 

.dariDebi, 291, 578. 
Raj Koomar Singh v. Sahebzada 

Roy, 5b9. 
Rajmohun Bose v. E. I. Rail. Co., 

119, 554. 
Ramsdenv. Dyson, 341. 
Randall r. NewRon, 466. 
Rani Sbamshoondri Deba r. Dubhu 

Muodul, 545. 
Rapier v. London Tramways Co.| 

119. 
Rashdall v. Ford, 263. 
Ratcliffe v. Evans, 223, 229, 284, 

286. 
Ra3rmond v. Fitch, 513. 
Rayner v. Mitchell, 79. 
Rea 9, Sheward, 350. 
Read r. Coker, 199. 

9. Edwards, 450. 

9. G. E. Rail. Co., 64. 

Readhead v. MidUnd Rail. Co., 466. 

Redgrave r. Hurd, 268, 577. 

Reece 9. Taylor, 201. 

Reed v. Nutt, 202. 

Reedie t>. L. & N. W. R. Co., 73. 

Reese River Silver Mining Co. 9, 

Smith, 269. 
R. v. Burdett, 567. 

— 9. Commissioners of Sewers for 

Essex, 442, 445. 

— v. Coney, 147, 148. 

— 9. Cotesworth, 197. 

— 9. Duckworth, 198. 

— 9, Jackson, 113. 

— 9. James, 198. 

— 9, Judge of City of London, 

Court, 526. 

— 9, Latimer, 30, 132. 



INDEX OF CASES. 



xxxyii 



B. «. Lesley, 191. 

— V, Lewis, 147. 

— r. Orton, H9. 
— - V. Riley, 347. 

— - V. St. George, 198, 661. 

— r. Sankara, 574. 

— V, Smith, 29. 

— r. Train, 360. 

— V. Williams, 64. 
Beinhardt v. Mentasti, 368, 369. 
Bexr. Pease, 117. 

BeyneU v. Sprye, 268. 
Beynolds v. Edwards, 366. 
Bice r. Corlidge, 242. 

V, Manley, 286, 602. 

V. Shute, 621. 

Bich V. BaMterfield, 387, 388, 689. 

V. Pilkington, 621. 

Bicket V, Met. Bail. Co., 362, 363, 

684. 
Biding v. Smith, 223, 229. 
Bistir. Faux, 214. 
Bohert Marys' Case, 211. 
Boberts r. Boberts, 224. 

V, Bose, 379. 

V. Wyatt, 333. 

Bobinson v. Cone, 427. 

r. Eiivert, 369. 

Bobson V, N. E. Bail. Co., 166, 

407, 433, 694. 
Bogers v. Lambert, 324. 

■ V. Bajendro Dutt, 141, 143, 

656. 

V, Spence, 175, 331. 

Bomney Marsh, Bailiffs of, 9, 
Trinity House, 39. 

Boope r. D*Avigdor, 186. 

Boscoe V. Boden, 319. 

Bose V. Miles, 362, 684. 

V. N. E. BaU. Co., 407, 433. 

Bosenberg r. Cook, 330. 

Bosewell v. Prior, 388, 689. 

Bossf. Bugge- Price, 181. 

Boorke v. White Moss Colliery Co. , 
76. 

BoyalAqnarium Society 9. Parkin- 
son, 243, 263. 

Bust V. Victoria Graying Dock 
Co., 173. 

Byder v. Wombwell, 404. 

Bylands v. Fletcher, 11, 18, 19, 
132, 134, 152, 438, 441, 442, 
443, 444, 446, 447, 448, 463, 
464, 595. 

S. 

Sadler v. Henlock, 72. 

■ r. S. Staffordshire Tram- 
ways Co., 464. 



St. Helen's Smelting Co. v. Tip- 
ping, 366, 367, 369, 383, 686, 587. 

St. Pancras, Vestry of, v. Batter- 
bury, 182. 

Salomons v Knight, 179, 255. 

Salvin v. North Branoepeth Coal 
Co., 366, 369, 386, 686. 

Sanders v. Stuart, 608. 

Saner v. Bilton, 314. 

Satku Valad Kadir Sausare v. 
Ibrahim Aga Valad Mirz& Agfi., 
685. 

Saunders r. Holbom District Board 
of Works, Add, 

Savile or Savill v, Boberts, 291. 

Saxby V. Manchester and Sheffield 
Bail. Co., 388. 

Scott V. London Dock Co., 400, 
410, 469, 591. 

V, Pape, 376. 

r. Seymour, 189. 

I V. Shepherd, 30, 44, 131, 161, 

644. 

r.Stansfield, 104, 106, 242, 660. 

Scott's Trustees v. Moss, 34. 

Seaman v. Netherdift, 242, 671. 

Searies v. Scarlett, 250. 

Secretary f f State in Council of 
Lidia r. Kamachee Boye Sahaba, 
100. 

Selby i\ Nettlefold, 353. 

Senuiyne's Case, 348. 

Seroka r. Kattenburg, 62. 

Seshaiyangar f. B. Bag^unatha 
B iw, 6o I . 

Seton r. Lafone, 33, 326. 

Seward v. The Vera Cruz, 62. 

Seymour v. Greenwood, 82, 84. 

Shaffers v. Qen, Steam Navigation 
Co., 528. 

Shama Chum Bose v. Bhola Nath 

Dutt, 545. 
iSharp V, Powell, 42, 44, 46, 46, 644. 
'Shaw V. Port Philip Gold Mining 
Co., 86. 

Shelfer v. City of London Electric 
Lighting Co. ^ Add, 

Shepheard v, Whitaker. 229. 

Sheridan v. New Quay Co., 324,581. 

Sherrington's Case, 620. 

Shiells V. Blackbume, 391, 479. 

Shipley v. Fifty Associates, 442. 

Shotts Iron Co. v. Inglis, 369. 

Simkin v. L. & N. W. Bail. Co., 47. 

Simpstn v. Savage, 3K6. 

Siner v. N. E. Bail. Co., 407. 

Singer Manufacturing Co. v. Loog, 

287. 

r. Wilson, 288. 



xxxyiii 



INDEX OF CASES. 



Singleton f . E. 0. Bail. Co., 427. 
Six Carpenten' Gaae, The, 354, 

355. 
Skelton p. L. & N. W. BaU. Co., 

410. 
Sldnner.9. L. B. & S. C. Bail. Co., 
400. 

& Co. 9. Shew k Co., 284. 

Skipp 17. E. C. Bail. Co., 93. 

Slade'fl Case, 479. 

Slatter*8 Case, 406. 

Slattery*8 Case, 430. 

Slim V, Croucher, 180, 271. 

Smart r. Jones, 341. 

Smith «. Baker, 134, 153, 154, 155, 

156, 467, 524, 525. 
V. Boston Gas Co., 456. 

f^. Brown, 61. 

V. Cbadwick, 260, 269, 274, 

277, 278. 

r. Cook, 449. 

r. Earl Brownlow, 376. 

r. Green, 32, 512. 

V. L. & S. W. RaU. Co., 392, 

407, 447, 591, 

V. London and St. Katharine 

Docks Co., 463, 600. 

r. Milles, 306. 

V, Sydney, 206. 

Sneesby v. L. & Y. Bail. Co., 32. 
Snowden r. Baynes, 524. 
Soltau r. De Held, 370, 586. 
Somerville v. Hawkins, 247, 573. 
Southcote V. Stanley, 473, 600. 
South Hetton Coal Co. v. N. E. 

News Association, 229. 
Speight V. Oliviera, 213, 215. 
Spill r. Maule, 247, 263. 
Stoight V. Bum, 375. 
Stanley v. Powell, 134, 443. 
Stanton v. Scrutton, 523. 
Steele v. Brannan, 251. 
Stephens v. Elwall, 318, 323. 

V. Myers, 198. 

Stetson r. Faxon. 362, 584. 
Stevens r. Jeacocke, 182. 

V. Sampson, 237, 251, 671. 

Stevenson v. Watson, 106. 

Steward v. Young, 285. 

Stewart v. Wyoming Banche Co., 

263. 
Stikeman v. Dawson, 50. 
Stone V. Denny, 265. 

r. Hyde, 527, 628. 

Storey v. Ashton, 79, 547. 
Street v. Union Bank, 145. 
Sturges V. Bridgman, 3G6, 368,587. 
Sullivan r. Spencer, 102. 
. V, Waters, 4C0, 472. 



I 



Sutton f. Town of Wanwatosa, 164. 
Swann v, Phillips, 279. 
Sweeny v. Old Colony and New- 
port R. B. Co., 468. 
Swift V. Jewsboxj, 279. 
Swinfen v. Baoon, 356. 
Swize V. Framsis, 86, 282. 

T. 

Tandy v. Westmoreland, 102. 
Tapling v. Jones, 374, 375. 
Tarini Charan Bose v. Debnrayan 

Mistri, 581. 
Tarleton v. McGawley, 218, 296. 
Tarry v. Ashton, 470, 600. 
Tasmania, The, 430. 
Tattan p. G. W. Bail. Co., 482. 
Taylur v, Ashton, 264, 269. 

p. Greenhalgh, 73. 

p. M. S. & L. B. Co., 484, 

487, 491, 495. 

p. Newman, 160. 

Teape p. Swan, 450. 
Temperton v. Bussell, 295, 500. 
Terry p. Hutchinson, 214, 215. 
Tharsis Sulphur Co. p. Loftus, 106. 
Thomas p, Quartermaine, 93, 152, 

153, 155, 466, 523, 625. 

p. Sorrell, 337. 

p. Williams, 178. 

p, Winchester, 456, 457, 

458, 459, 496, 598. 
Thompson p. Mayor of Brighton, 
182. 

p, Gibson, 387. 

t;. Boss, 214. 

Thorley's Cattle Food Co. p. Mas- 

sam, 178, 285. 
Thorogood p. Bryan, 422, 423. 
Thorpe r. Brumfitt, 372. 
Thrussell p. Handyside, 153, 156. 
Tillett p. Ward, 450, 545. 
Timothy v. Simpson, 205. 
Tipping p, St. Helen's Smelting 

Co., 367. 
Tod-Heatly p. Benham, 366. 
Todd p. FUght, 387, 589. 
Tollit p. Sherstone, 497. 
Tompson p. Dashwood, 232. 
Tozer p. Child, 112, 298, 578. 
Traill p. Baring, 2G8. 
Tuberville p. Savage, 199. 

p. Stampe, 72, 452, 597. 

Tucker p. Linger, 316. 

Tuff p. Warman, 414, 418, 429, 

592 
TuUidge p. Wade, 175, 212. 
Tunney p. M. Bail. Co., 90, 648. 



INDEX OF CASES, 



Tnxner v. Ringwood Highway 

Boaid, 361, 366. 
V. S. P. & D. RaU. Co., 

548. 
Twomley v. Central Park B. R. 

Co., 434. 
Twycrofls v. Grant, 67, 60. 
TTRingham's Case, 360. 

U. 

Udell «. Atherion, 269. 
Underwood v. Hewson, 131. 
Union 8. S. Co. c. Claridge, 76. 
Usill V. Hales, 260. 

V. 

Yallanoe v. Falle, 182. 
Vandenburgh v. Tmax, 33, 644. 
Vaspor 9. Edwards, 360, 336. 
Vaughan v, Meolove, 394, 463. 
r. TalBP Vale Rail. Co., 

117, 447, 597. 
Vernon r. Keys, 262. 
Vicars v. Wiloocks, 45, 222, 223, 

600. 
Victorian Ry. Commissioners v, 

Cooltas, 46. 
Vin&yab Dis&kar v. B&i Itoh&, 661. 
Viranna v. Nag&yyah, 646. 
Vithob& Malh&ri v. Corfield, 660. 



W. 

Waite V, K. E. Rail. Co., 426, 

693. 
Wakelin 9. L. & S. W. Rail. Co., 

397, 398, 406, 420, 690. 
Wakeman r. Robinson, 133. 
Walker v. Brewster, 370. 

■ V, Cronin, 602. 

■ r. Needham, 618. 
Wallis 0. Harrison, 337. 
Walsh r. Whiteley, 166. 
Walter v. Selfe, 366, 686. 
Wandsworth Board of Works v. 

United Telephone Co., 308. 
Wanless v. N. E. Rail. Co., 402, 

406, 430, 691, 694. 
Ward V, Hobbs, 24. 

V. Lloyd, 187. 

Warlow V. Harrison, 267. 
Warner v. Riddiford, 203. 
Washing^n Ry. Co. 9. MoDade, 

436. 
Wason V. Walter, 237, 249, 671. 
Watkin v. Hall, 236, 669. 
Weare, Re, 228. 
Weaver f>. Ward, 130, 131. 



Webb V. Beayan, 226. 

V, Bird, 372. 

Weblin v. Ballard, 623, 625. 
Weems v. Mathieson, 93. 
Weir V, Bell, 269. 
Weldon «. De Bathe, 62. 

V, Neal, 195. 

1'. Window, 61. 

Welfare v. L. & B. RaiL Co., 471. 
Wellock r. Constantino, 186. 
Wells V. Abrahams, 186, 187. 
Wenman v. Ash, 232. 
Wennhak v. Morgan, 176, 232. 
West V. Nibbs, 349, 356. 

r. Small wood, 206. 

Western Bank of Sootland v, Addie, 

264, 282. 
West London Commercial Bank r. 

Eitson, 262. 
Whalley v. L. & T. Rail. Co., 162. 
Whatman v, Pearson, 78, 647. 
Wheeler r. Mason Manufacturing 

Co., 96. 
White V. France, 462. 

V. Jameson, 887, 689. 

r. Lang, 164. 

■ V. Spettigfue, 186. 

Whitham v. Kershaw, 173, 176, 

180, 602. 
Whittaker, Ex parte, 261. 
Wicks V. Fentham, 288. 
Wiggett V. Fox, 93. 
Wigvell V. School for Lidig^nt 

Blind, 180. 
Wilbraham v. Snow, 316. 
Wild r. Waygood, 74, 624. 
Wilkes 9. Hungerford Market Co., 

362, 584. 
Wilkins r. Day, 363. 
Wilkinson v. Hay garth 328. 
Willetts r. Watt, 623. 
Williams r. East India Co., 697. 

V, Qt. W. Rail. Co., 38, 

402. 

■ i>. Jones, 80. 

9. Smith, 260. 

Williamson r. Allison, 261, 267, 

480. 

V. Freer, 280, 262, 574. 

Willis V, Maclachlan, 105. 
Wilson V. Barber, 333. 

V. McLaaghlin, 319. 

r. Merry, 89, 92. 

i>. Newberry, 444, 446. 

■ 9. Tumman, 69. 

V. Waddell, 442. 

Winsmore v. Greenbank, 212. 
Winter v. Brock well, 340. 
Winterbottom v. Derby, 362, 686. 

r. Wright. 466, 495, 496. 



jl 



INDEX OF CASES. 



Wood 9. Durham, 254. 

r. Leadbitter, 338, 839, 340, 

341. 

V. Waud, 367, 688. 

r. Woad, 112. 

Woodhouse v. Walker, 60, 312. 
WojKiley r. Metr. Dial. Rail. Co., 

162. 
Woodward v. Walton, 212. 
Worth r. GUling, 461. 
Wren v. Weild, 285. 



Wright V. Leonard, 53. 

V. Pearson, 461. 

' r. Bamscot, 310. 

T. 

YarboroQgh v. Bank of England, 

63. 
Yarmouth v. France, 152, 163, 467, 

523, 625, 628. 
Yates V. Jack, 378. 



22 



21 
22 



33 
36 
37 
39 
6 



Ab8. 



27 

48 Edw. III. 

2 Hen. IV. 

11 



19 Hen. VI. 



Edw. IV. 



8 

9 

12 

14 

17 

17 

20 

21 

7 Hen. VII. 

9 

16 

16 

21 



27 

1 2 Hen. VIII. 
27 



YEAR BOOKS CITED. 

pAoa 
pi- 48 349 

100, — 67 53 

102, — 76 217 

134, — 11 200 

20, — 8 332 

18, — 6 462,482 

1-2, — 2 216 

47, — 21 136, 137, 655 

76, — 16 364 

33, — 68 450 

45, — 94 210,332 

66, — 10 66 

26, — 9 217 

14, — 23 137 

31 216 

32* 217 

27, — 12 355 

20*— 8 200 

37, — 26 352 

7, -- 12 339 

7, — 18 130 

8, 352 

23, - 41 167 

35, — 10 347,352 

13, — 9 334 

7, — 13 217 

1 32 

3,-2 200 

11, — 10 460 

76*,— 9 363 

22, — 3 323 

7,-4 217 

10, — 18 378 

2,-7 334 

27, — 6 130,167,352 

28, 129,157 

39, — 50 169 

85*, 862 

86*,— 19 362 

39. — 49 334,363 

2, 167 

27, — 10 361,363,584 



/ ^ ' 



THE LAW OF TORTS. 



Book I.— OENBBAL PABT. 



CHAPTER I. 



THE NATUBE OP TORT IN GENERAL. 



Our first diffiouliy in dealiog with the law of torts is to What l« a 
fix the contents and boundaries of the subject. If we 
are asked, What are torts P nothing seems easier than to 
answer by giving examples. Assault, libel, and deoeit are 
torts. Trespass to l^land and wrongful dealing with goods 
by trespass, "conversion," or otherwise are torts. The 
creation of a nuisance to the special prejudice of any 
person is a tort. Causing harm by negligence is a tort. 
So is, in certain cases, the mere failure to prevent acci- 
dental harm arising from a state of things which one has 
brought about for one's own purposes. Default or mis- 
carriage in certain occupations of a public nature is like- 
wise a tort, although the same facts may constitute a 
breach of contract, and may, at the option of the aggrieved 
party, be treated as such. But we shall have no such 
easy task if we are required to answer the question. What 
is a tort P — ^in other words, what principle or element is 
common to all the classes of cases we have enumerated, or 
might enumerate, and also distinguishes them as a whole 
from other classes of facts giving rise to legal duties and 
I . , p. H 



2 THE NATURE OP TOBT IN GENERAL. 

liabilities P It is far from a siinple matter to define a 
contract. Bat we have this muoh to start from, tliat there 
are two parties, of whom one agrees to terms offered by 
the other. There are variant and abnormal forms to be 
dealt with, but this is the normal one. In the law of torts 
we have no such starting-point, nothing (as it appears at 
first sight) but a heap of miscellaneous instances. The 
word itself will plainly not help us. Tort is nothing but 
the French equivalent of our English word icrong^ and was 
freely used by Spenser as a poetical synonym for it. In 
common speech everything is a wrong, or wrongful, which 
is thought to do violence to any right. Manslaying, false 
witness, breach of covenant, are wrongs in this sense. 
But thus we should include all breaches of all duties, and 
therefore should not even be on the road to any distinction 
that could serve as the base of a legal classification. 

History In the history of our law, and in its existing authorities, 

of English ^^ ^^3^7 fii^d some little help, but, considering the magni- 
tiOT*'^^" *^^® ^' *^® subject, singularly little. The ancient conmion 
law knew nothing of large classifications. There were 
forms of action with their appropriate writs and process, 
and authorities and traditions whence it was known, or in 
theory was capable of being known, whether any given 
set of facts would fit into any and which of these forms. 
No doubt the forms of action fell, in a manner, into 
natural classes or groups. But no attempt was made to 
discover or apply any general principle of arrangement. 
In modem times, that is to say, since the Bestoration, we 
find a certain rough classification tending to prevail (a). 
It is assumed, rather than distinctly asserted or established, 
that actions maintainable in a court of common law must 
be either actions of contract or actions of tort. This divi- 
sion is exclusive of the real actions for the recovery of 

(a) Appendix A. 



LIMITS OF TERMINOLOGY. 

land, already beooming obsolete in the seyenteenth oentoij, 
and finally abolished by the Common Law Procedure Act, 
with which we need not concern ourselves : in the old 
technical terms, it is, or was, a division of personal actions 
only. Thus torts are distinguished from one important 
class of causes of action. Upon the other hand, they are 
distinguished in the modem law from criminal ofPences. 
In the medieval period the procedure whereby redress was 
obtained for many of the injuries now classified as torts 
bore plain traces of a criminal or quasi-criminal character, 
the defendant against whom judgment passed being liable 
not only to compensate the plaintiff, but to pay a fine to 
the king. Public and private law were, in truth, but 
imperfectly distinguished. In the modem law, however, 
it is settled that a tort, as such, is not a criminal offence. 
There are various acts which may give rise both to a civil 
action of tort and to a criminal prosecution, or to the 
one or the other, at the injured party's option ; but the 
civil suit and the criminal prosecution belong to different 
jurisdictions, and are guided by different rules of pro* 
cedure. Torts belong to the subject-matter of Common 
Pleas as distinguished from Pleas of the Crown. Again, 
the term and its usage are derived whoUy from the 
Superior Courts of Westminster as they existed before 
the Judicature Acts. Therefore the law of torts is 
necessarily confined by the limits within which those 
Courts exercised their jurisdiction. Divers and weighty 
affairs of mankind have been dealt with by other Courts 
in their own fashion of procedure and with their own 
terminology. These lie wholly outside the common law 
forms of action and all classifications founded upon them. 
According to the common understanding of words, breach 
of trust is a wrong, adultery is a wrong, refusal to pay 
just compensation for saving a vessel in distress is a 

b2 



4 THE NATURE OF TOBT IN GENERAL, 

iVTong. An order may be made oompelling reBtitution 
from the defaulting trustee; a decree of judicial sepa- 
ration may be pronounced against the unfaithful wife or 
husband ; and payment of reasonable salvage may be 
enforced against the ship-owner. But that which is 
remedied in each case is not a tort. The administration 
of trusts belongs to the law formerly peculiar to the Chan- 
cellor's Court ; the settlement of matrimonial causes be- 
tween husband and wife to the law formerly peculiar to 
the King's Ecclesiastical Courts; and the adjustment of 
salvage claims to the law formerly peculiar to the Admi- 
ral's Court. These things being unknown to the old com- 
mon law, there can be no question of tort in the technical 
sense. 

ExdiuiYe Taking into account the fact that in this country the 
«tort." separation of courts and of forms of action has disap- 
peared, though marks of the separate origin and history 
of every branch of jurisdiction remain, we may now say 
this much. A tort is an act or omission giving rise, in 
virtue of the common law jurisdiction of the Court, to a 
civil remedy which is not an action of contract. To that 
extent we know what a tort is not. We are secured 
against a certain number of obvious errors. We shall not 
imagine (for example) that the Married Women's Property 
Act of 1882, by providing that husbands and wives can- 
not sue one another for a tort, has thrown doubt on the 
possibility of a judicial separation. But whether any 
definition can be given of a tort beyond the restrictive 
and negative one that it is a cause of action (that lb, of a 
" personal " action as above noted) which can be sued on 
in a court of common law without alleging a real or sup- 
posed contract, and what, if any, are the common positive 
characters of the causes of action that can be so sued 



HISTORICAL DISTINCTIONS. « 

upon : — ^these are matters on which our books, ransack 
them as we will, refuse to utter any certain sound what- 
ever. If the collection of rules which we call the law of 
torts is founded on any general principles of duty and 
liability, those principles have nowhere been stated with 
authority. And, what is yet more remarkable, the want 
of authoritative principles appears to have been felt as a 
want by hardly anyone (6). 

We have no right, perhaps, to assume that by fair Are any 
means we shall discover any general principles at all. ^^pies 
The histoiy of English usage holds out, in itself, no great ^S^^^'- 
enoouragement. In the earlier period we find a current 
distinction between wrongs accompanied with violence and 
wrongs which are not violent ; a distinction important for 
a state of society where open violence is common, but of 
little use for the arrangement of modem law, though it is 
still prominent in Blackstone's exposition (c). Later we 
find a more consciously and carefully made distinction 
between contracts and causes of action which are not con- 
tracts. This is very significant in so far as it marks the 
ever gaining importance of contract in men's affairs. 
That which is of contract has come to fill so vast a bulk in 
the whole frame of modem law that it may, with a fair 
appearance of equality, be set over against everything 
which is independent of contract. But this unanalysed 
remainder is no more accounted for by the dichotomy of 
the Common Law Procedure Act than it was before. It 
may have elements of coherence within itself, or it may 
not. If it has, the law of torts is a body of law capable 
of being expressed in a systematic form and under appro- 

{b) The first, or almoat the first, See the chapter on liability in hia 
writer who has clearly called at- *' Elements of Law." 
tention to it is Sir William Markby. ^ (e) Gomm. iii. 118. 



6 THE NATURE OF TOET IN GENERAL. 

priate general principlesy whether any partioalar attempt 
BO to express it be Baooessful or not. If not, then there is 
no such thing as the law of torts in the sense in whioh 
there is a law of contracts, or of real property, or of trusts, 
and when we make use of the name we mean nothing but 
a collection of miscellaneouB topics which, through his- 
torical accidents, have never been brought into any real 
classification. 

The The only way to satisfy ourselves on this matter is to 

torts in examine what are the leading heads of the English law of 
2^*^ torts as commonly received. If these point to any sort of 
common principle, and seem to furnish acceptable lines of 
construction, we may proceed in the directions indicated ; 
well knowing, indeed, that excrescences, defects, and ano- 
malies will occur, but having some guide for our judgment 
of what is normal and what is exceptional. Now the civil 
wrongs for which remedies are provided by the common 
law of England, or by statutes creating new rights of 
action under the same jurisdiction, are capable of a three- 
fold division according to their scope and effects. There 
are wrongs affecting a man in the safety and freedom of 
his own person, in honour and reputation (which, as men 
esteem of things near and dear to them, come next after 
the person, if after it at aU), or in his estate, condition, 
and convenience of life generally : the word estate being 
here understood in its widest sense, as when we speak of 
those who are " afflicted or distressed in mind, body, or 
estate." There are other wrongs which affect specific pro- 
perty, or specific rights in the nature of property : property, 
again, being taken in so large a sense as to cover possessory 
rights of every kind. There are yet others which may 
affect, as the case happens, person or property, either or 
both. We may exhibit this division by arranging the 



CLAflSinCATION OF T0ET8. 7 

familiar and ty^ioel specieB of torts in groups, omitting 
for the present suoh as are obscure or of little praotieal 
moment. 

Group A. 
Personal Wrongs. Perao nal 

wrongs. 

1. Wrongs affecting safety and freedom of the person : 

Assault, battery, f abe imprisonment. 

2. Wrongs affecting personal relations in the family : 

Seduction, enticing away of servants. 

3. Wrongs affecting reputation : 

Slander and libel. 

4. Wrongs affecting estate generally : 

Deceit, slander of title. 
Malicious prosecution, conspiracy. 

Group B. 
Wrongs to Property. Wronga to 

property. 

1. Trespass : (a) to land. 

(b) to goods. 
Conversion and unnamed wrongs ejusdeni generis. 
Disturbance of easements, &c. 

2. Interference with rights analogous to property, such 

as private franchises, patents, copyrights. 

Group 0. 
Wrongs to Person^ Estate j and Property generally. Wrongs 

affecting 

1. Nuisance. person and 

propertjr. 

2. Negligence. 

8. Breach of absolute duties specially attached to the 
occupation of fixed property, to the ownership and 
custody of dangerous things, and to the exercise 
of certain public callings. This kind of liability 



8 



THE NATUBE OF TORT IN GENERAL. 



results, as will be seen hereafter, partly from 
anoient rules of the common law of whioh the 
origin is still doubtful, partly from the modem 
development of the law of negligence. 

All the acts and omissions here speoifled are undoubtedly 
torts, or wrongs in the technical sense of EngUsh law. 
They are the subject of legal redress, and under our old 
judicial system the primary means of redress would be an 
action brought in a common law Court, and governed by 
the rules of common law pleading (d). 

We put aside for the moment the various grounds of 
justification or excuse which may be present, and if present 
must be allowed for. It will be seen by the student of 
Bioman law that our list includes approximately the same 
matters (e) as in the Boman system are dealt with (though 
much less fully than in our own) under the title of 
obligations ex delicto and qtiasi ex delicto. To pursue the 
comparison at this stage, however, would only be to add 
the difficulties of the Boman classification, which are 
considerable, to those already on our hands. 



Charaoter The groups above shown have been formed simply with 
fulaots, reference to the effects of the wrongful act or omission. 
Se ^OTal ^^* *^®y appear, on further examination, to have certain 
<^^^BSA. distinctive characters with reference to the nature of the 
wzongs. ^ ^^ omission itself. In Ghx)up A., generally speaJdng, 



(d) In fiome oases the reaUy ef- 
fectual remediee were administered 
hj the Gonrt of Chancery, but only 
as auxiliary to the legal right, 
which it was often neoessaxy to 
establish in an action at law before 
the Ck>art of Chancery would inter- 
fere. 



[e) Trespass to land may or may 
not be an exception, according to 
the view we take of the nature of 
the liabilities enforced by the pos- 
sessory remedies of the Boman law. 
Some modem authorities, though 
not most, regard these as ex delicto. 



MORAL ELEMENTS. 9 

the wrong is wilful or wanton. Either the aot is intended 
to do harm, or, being an aot evidently likely to cause harm, 
it is done with reckless indifference to what may befall by 
reason of it. Either there is deliberate injury, or there is 
something like the self-seeking indulgence of passion, in 
contempt of other men's rights and dignity, which the 
Ghreeks called vfipis. Thus the legal wrongs are such as to 
be also the object of strong moral condemnation. It is 
needless to show by instances that violence, evil-speaking, 
and deceit, have been denounced by righteous men in all 
ages. If anyone desires to be satisfied of this, he may 
open Homer or the Psalter at random. What is more, we 
have here to do with acts of the sort that are next door to 
crimes. Many of them, in fact, are criminal offences as 
well as civil wrongs. It is a common border land of 
criminal and civil, pubhc and private law. 

In Ghroup B. this element is at first sight absent, or at Wrongs 
any rate indifferent. Whatever may or might be the case ^Sdj nn- 
in other legal systems, the intention to violate another's ^'^^^ 
rights, or even the knowledge that one is violating them, blame, 
is not in English law necessary to constitute the wrong of 
trespass as regards either land or goods, or of conversion as 
regards goods. On the contrary, an action of trespass — or 
of ejectment, which is a special form of trespass — ^has for 
centuries been a common and convenient method of trying 
an honestly disputed claim of right. Again, it matters not 
whether actual harm is done. ^' By the laws of England, 
every invasion of private property, be it ever so minute, is 
a trespass. No man can set his foot upon my ground 
without my licence, but he is liable to an action, though 
the damage be nothing; which is proved by every declara- 
tion in trespass, where the defendant is called upon to 
answer for bruising the graas and even treading upon the 



10 THE NATUEB OP TOET IN GENERAL. 

soil" (/). Nor is this all; for dealing with another man's 
goods without lawful authority, but under the honest and 
even reasonable belief that the dealinir is lawful, may be 
an actionable ^ng notwiihstanding L innocen;« of the 
mistake {g). Still less will good intentions afford an ex« 
ottse. I find a watoh lying in the road; intending to do the 
owner a good turn, I take it to a watchmaker, who to the 
best of my knowledge is competent, and leave it with hirp 
to be cleaned. The task is beyond him, or an incompetent 
hand is employed on it, and the watch is spoilt in the 
attempt to restore it. Without question the owner may 
hold me liable. In one word, the duty which the law of 
England enforces is an absolute duty not to meddle with- 
out lawful authority with land or goods that belong to 
others. And the same principle applies to rights which, 
though not exactly property, are analogous to it. There 
are exceptions, but the burden of proof lies on those who 
claim their benefit. The law, therefore, is stricter, on the 
face of things, than morality. There may, in particular 
circumstances, be doubt what is mine and what is my 
neighbour's ; but the law expects me at my peril to know 
what is my neighbour's in eveiy case. Eeserving the 
explanation of this to be attempted afterwards, we pass on. 

Wrongs of In Qroup C. the acts or omissions complained of have a 
^noe and l^i^d of intermediate character. They are not as a rule 
omiasion. ■^jfuHy or Wantonly harmful ; but neither ore they morally 
indifferent, save in a few extreme cases under the third head. 
The party has for his own purposes done acts, or brought 
about a state of things, or brought other people into a 
situation, or taken on himself the conduct of an operation, 
which a prudent man in his place would know to be 

(/) Per Our. Entick v. Carring' {jf) See BoIUm v. Fowler, L. B. 

ton, 19 St. Tr. 1066. 7 H. L. 757, 44 L. J. Q. B. 169. 



MOBAL ELEMENTS. 11 

attended with certain liskfl. A man who fails to take 
order, in things within his control, against risk to others 
which he actuallj foresees, or which a man of common 
sense and competence would in his place foresee, will 
scarcely be held blameless by the moral judgment of his 
fellows. Legal liabiUtj for negligence and similar wrongs 
corresponds approximately to the moral censure on this 
kind of default. The commission of something in itself 
forbidden by the law, or the omission of a positive and 
specific legal duty, though without any intention to cause 
hann, can be and is, at best, not more favourably con- 
sidered than imprudence if harm happens to come of it ; 
and here too morality will not dissent. In some condi- 
tions, indeed, and for special reasons which must be con- 
sidered later, the legal duty goes beyond the moral one. 
There are cases of this class in which liability cannot be 
avoided, even by proof that the utmost diligence in the way 
of precaution has in fact been used, and yet the party 
liable has done nothing which the law condemns {h). 

Except in these cases, the liabiliiy springs from some 
shortcoming in the care and caution to which, taking human 
affairs according to the common knowledge and experience 
of mankind, we deem ourselves entitled at the hands of 
our fellow-men. There is a point, though not an easily 
defined one, where such shortcoming gives rise even to 
criminal liability, as in the case of manslaughter by negli- 
gence. 

We have, then, three main divisions of the law of torts. BeUtion 
In one of them, which may be said to have a quasi- ^torts^to 



(A) How far sach a dootrme can has been explioitly affirmed by the 

be theoreticaUj or historically jna- House of Lorda : Rylandt t. Flet- 

tified is not an open question for eher (1868), L. B. 3 H. L. 330, 37 

English courts of justice, for it L. J. Ex. 161. 



12 THE NATUEE OF TORT IN GENERAL. 

tbe semi- criminal character, there is a very strong ethical element. 
precept In another no such element is apparent. In the third such 
^'^^Sr*. *^ element is present, though less manifestly so. Can we 



non 



find any category of human duties that will approxi« 
mately cover them all, and bring them into relation with 
any single principle? Let us turn to one of the best- 
known sentences in the introductory chapter of the Insti* 
tutes, copied from a lost work of Ulpian. " luris praecepta 
sunt haec: honeste Tivere, alteram non laedere, suum 
cuique tribuere." Honeste vivere is a vague phrase enough ; 
it may mean refraining from criminal offences, or possibly 
general good behaviour in social and family relations. 
Suum cuique tribuere seems to fit pretty well with the law 
of property and contract. And what of alierum non 
laedere ? " Thou shalt do no hurt to thy neighbour." 
Our law of torts, with all its irregularities, has for its 
main purpose nothing else than the development of this 
precept (t). This exhibits it, no doubt, as the technical 
working out of a moral idea by positive law, rather than 
the systematic application of any distinctly legal con- 
ception. But all positive law must pre- suppose a moral 
standard, and at times more or less openly refer to it ; and 
the more so in proportion as it has or approaches to having 
a penal character. 

Historical The real difficulty of ascribing any )*ational unity to our 
0^1^ of 1&^ of torts is made by the wide extent of the liabilities 
and^- nientioned under Ghroup B., and their want of intelligible 
version, relation to any moral conception. 

A right of property is interfered with " at the peril of 

(f) Compare the Btatement of of EI7, who was a learned ciyilian : 

"duty towards my neighbour/' in "To hurt nobody by word nor 

the Church Catechism, probably deed : To be true and just in aU 

from the hand of €k)odrich, Bishop my dealing . . . ." 



FORMS OF ACTION. 



13 



the person interfering with it, and whether his interference 
be for his own use or that of anybody else " (k). 

And whether the interference be wilful, or reckless, or 
innocent but imprudent, or innocent without imprudence, 
the legal consequences and the form of the remedy are 
for English 'justice the same. 

The truth is that we have here one of the historical Earl^ 
anomaUes that abound in English law. Formerly we offonuBof 
had a clear distinction in the forms of procedure (the ^^^^ 
only evidence we have for much of the older theory of the 
law) between the simple assertion or vindication of title 
and claims for redress against specific injuries. Of course 
the same facts would often, at the choice of the party 
wronged, afford ground for one or the other kind of daim^ 
and the choice would be made for reasons of practical con> 
venience, apart from any scientific or moral ideas. But 
the distinction was in itself none the less marked. For Writs of 
assertion of title to land there was the writ of right ; and ^ts ^ 
the writ of debt, with its somewhat later variety, the writ I^^^^q^ 
of detinue, asserted a pMntiff 's title to money or goods in or puniBh- 
a closely corresponding form (/). Injuries to person or 
property, on the other hand, were matter for the writ of 
trespass and certain other analogous writs, and (from 
the 13th century onwards) the later and more compre- 



{k) Lord O'Hagan, L. B. 7 H. 
L. at p. 799. 

(0 The writ of right (aianviU, 
Bk. i. c. 6) nuLB thus : *' Rex yioe- 
comiti BaJntem : Praecipe A. quod 
Bine dilatione reddatB. unam hidam 
terrae in villa ilia, nnde idem B. 
queritnr quod praedictus A. ei de- 
forceat: et nisi fecerit, Bmnmone 
earn," &c. The writ of debt (Bk. 
z. c. 2) thuB: ''Bex yioeoomiti 



Balatem: Praecipe K. quod ioste 
et Bine dilatione reddat B. centum 
maroas quas ei debet, nt dicit, ot 
nnde qaeritnr quod ipse ei ininste 
deforoeat. Et nisi feoerit, Bnm- 
mone enm," &o. The writs of 
covenant and account, which were 
developed later, also contain the 
characteristic words iusU et tins 
dilatioiu. 



14 



THE NATUEE OP TOET IN GENERAL. 



hensive writ of trespass on the case (m). In the former 
kind of process, restitution is the object songht; in the 
latter, some redress or compensation which, there is great 
reason to believe, was originally understood to be a sub- 
stitute for private vengeance (n). Now the writs of resti- 
tution, as we may collectively call them, were associated 
with many cumbrous and archaic points of procedure, 
exposing a plaintiff to incalculable and irrational risk; 
while the operation of the writs of penal redress was by 
comparison simple and expeditious. Thus the interest of 
suitors led to a steady encroachment of the writ of tres- 
pass and its kind upon the writ of right and its kind. 
Not only was the writ of right first thrust into the back- 
ground by the various writs of assize — ^f orms of possessory 
real action which are a sort of link between the writ of 
right and the writ of trespass — and then superseded by 
the action of ejectment, in form a pure action of trespass ; 
but in like manner the action of detinue was largely sup- 
planted by trover, and debt by assumpsit, both of these 
new-fashioned remedies being varieties of action on the 
case (o). In this way the distinction between proceedings 
taken on a disputed claim of right, and those taken for 



(fn) Blackstone, iii. 122 ; F. N. 
B. 92. The mark of this class of 
actions is the conclusion of tlie 
writ e<mtra paeem. Writs of assize, 
including the assize of nuisance, 
did not so conclude, but show 
analogies of form to the writ of 
trespass in other respects. Actions 
on the case might be founded on 
other writs besides that of trespass, 
$,ff., deceit, which contributed 
largely to the formation of the 
action of assumpnt. The writ of 
trespass itself is bj no means one 
of the most ancient: see F. W. 
Maitland in Harv. Law BeT. iii. 



217—219. 

(ft) Not retaliation. Early Ger- 
manic law shows no trace of retalia- 
tion in the strict sense. A passage 
in the introduction to Alfred's laws, 
copied from the Book of Exodus, 
is no real exception. 

(o) For the advantages of suing 
in case over the older forms of 
actions, see Blackstone, iii. 163, 
155. The reason gfiven at p. 152 
for the wager of law (as to which 
see Co. Litt. 295 a) being allowed 
in debt and detinue is some one's 
idle guess, due to mere ignorance 
of the earlier history. 



ANOMALIES OF TBESPASS. 15 

the redress of injuries where the right was assumed not 
to be in dispute, became quite obliterated. The forms of 
action were the sole embodiment of such legal theory as 
existed ; and therefore, as the distinction of remedies was 
lost, the distinction between the rights which they pro- 
tected was lost also. By a series of shifts and devices 
introduced into legal practice for the ease of litigants a 
great bulk of what really belonged to the law of property 
was transferred, in forensic usage and thence in the tra- 
ditional habit of mind of English lawyers, to the law of 
torts. In a rude state of society the desire of vengeance 
is measured by the harm actually suffered and not by any 
consideration of the actor's intention; hence the archaic 
law of injuries is a law of absolute liability for the direct 
consequences of a man's acts, tempered only by partial 
exceptions in the hardest cases. These archaic ideas of 
absolute liability made it easy to use the law of wrongful 
injuries for trying what were really questions of absolute 
right ; and that practice again tended to the preservation 
of these same archaic ideas in other departments of the 
law. It will be observed that in our early forms of action 
contract, as such, has no place at all (p) ; an additional 
proof of the relatively modem character both of the 
importance of contract in practical life, and of the growth 
of the corresponding general notion. 

We are now independent of forms of action. Trespass Ratioii- 
and trover have become historical landmarks, and the ^^^n of 
question whether detinue is, or was, an action founded }*^o' 

trespass* 

on contract or on tort (if the foregoing statement of the 
history be correct, it was really neither) survives only to 

{p) Except what may be implied the original partieB to the oon- 

from the tedhnical rale that the tract: F. N. B. 119; BlaokBtone, 

word debet was proper only in an ill. 156. 
action for a sum of money between 



16 THE KATtlBE OF TOBT IK QENERAL. 

raise diffioultieB in applying oertain proTisions of the 
County Courts Aot as to the soale of costs in the Superior 
Courts (q) . It would seem, therefore, that a rational 
exposition of the law of torts is free to get rid of the 
extraneous matter brought in, as we have shown, by the 
praotioal exigency of conditions that no longer exist. At 
the same time a certain amount of excuse may be made 
on rational grounds for the place and function of the law 
of trespass to property in the English system. It appears 
morally unreasonable, at first sight, to require a man at 
his peril to know what land and goods are his neighbour's. 
But it is not so eyidently unreasonable to expect him to 
know what is his own, which is only the statement of the 
same rule from the other side. A man can but seldom go 
by pure unwitting misadventure beyond the limits of his 
own dominion. Either he knows he is not within his 
legal right, or he takes no heed, or he knows there is a 
doubt as to his right, but, for causes deemed by him 
sufficient, he is content to abide (or perhaps intends to 
provoke) a legal contest by which the d^ubt may be 
resolved. In none of these cases can he complain with 
moral justice of being held to answer for his act. If not 
wilfully or wantonly injurious, it is done with some want 
of due circumspection, or else it involves the conscious 
acceptance of a risk. A form of procedure which attempted 
to distinguish between these possible cases in detail would 
for practical puiposes hardly be tolerable. Exceptional 
cases do occur, and may be of real hardship. One can 
only say that they are thought too exceptional to count in 
determining the general rule of law. From this point of 
view we can accept, though we may not actively approve, 
the inclusion of the morally innocent with the morally 
guilty trespasses in legal classification. 

{q) Bryant t. Ecrkrt (1878), 3 C. P. Div. 389, 47 L. J. C. P. 670. 



DOLUS AND CULPA. Vf 

We may now turn with profit to the oompariflon of the Aiialogy 

— .. of tiio 

ICoinan system with our own. There we find strongly Bomanob- 
marked the distinction between restitution and penalty, ^^ueto. 
which was apparent in our old forms of action, but became 
obsolete in the manner above shown. Mr. Moyle (r) thus 
describes the specific character of obligations ex delicto. 

^^ Such wrongs as the withholding of possession by a 
defendant who bona fide belieyes in his own title are not 
delicts, at any rate in the specific sense in which the term 
is used in the Institutes ; they give rise, it is true, to a 
right of action, but a right of action is a different thing 
from an ohligatio ex delicto ; they are redressed by mere 
reparation, by the wrong-doer being compelled to put the 
other in the position in which he would have been had the 
wrong never been committed. But delicts, as contrasted 
with them and with contracts, possess three peculiarities. 
The obligations which arise from them are independent, 
and do not merely modify obligations already subsisting ; 
they always involve dolus or culpa ; and the remedies by which 
they are redressed arepenaV^ 

The Latin doluSy as a technical term, is not properly^ l>oUu and 
rendered by "fraud" in English; its meaning is mucr 
wider, and answers to what we generally signify by " un- 
lawful intention." Culpa is exactly what we mean byl 
" negligence," the falling short of that care and circum- 
spection which is due from one man to another. The 
rules specially dealing with this branch have to define the 
measure of care which the law prescribes as due in the case 
in hand. The Boman conception of such rules, as worked 
out by the lawyers of the classical period, is excellently 
illustrated by the title of the Digest " ad legem Aqui- 
liam," a storehouse of good sense and good law (for the 

(r) In Ha edition of the Inatitntee, note to Bk. it. tit. 1, p. 513, 2nd ed. 
P. o 



18 THE NATURE OF TORT IN GENERAL. 

principles are substantially the same as ours) deserving 
much more attention at the hands of English lawyers than 
it has received. It is to be observed that the Boman 
theory was built up on a foundation of archaic materials 
by no means unlike our own; the compensation of the 
civilized law stands instead of a primitive retaliation which 
was still recognized by the law of the Twelve Tables. If 
then we put aside the English treatment of rights of 
property as being accounted for by historical accidents, 
we find that the Boman conception of delict altogether 
supports (and by a perfectly independent analogy) the 
conception that appears really to underlie the English law 
of tort. Liability for delict, or civil wrong in the strict 
sense, is the result either of wilful injury to others, or 
wanton disregard of what is due to them (dolus) j or of a 
failure to observe due care and caution which has similar 
though not intended or expected consequences (culpa). 
We have, moreover, apart from the law of trespass, an 
liability exceptionally stringent rule in certain cases where liability 
delicto. is attached to the befalling of harm without proof of 
either intention or negligence, as was mentioned under 
Group C of our provisional scheme. Such is the case of 
the landowner who keeps on his land an artificial reservoir 
of water, if the reservoir bursts and floods the lands of his 
neighbours. Not that it was wrong of him to have a 
reservoir there, but the law says he must do so at his own 
risk («). This kind of liability has its parallel in Boman 
law, and the obligation is said to be not ex delicto^ since 
true delict involves either dolm or culpa^ but quasi ex 
delicto (f). Whether to avoid the difficulty of proving 

(«) Rylandt t. Fletcher^ L. R. it deserres. It is true, however, 

3 H. L. 330, 37 L. J. Ex. 161. that the applioation of the term in 

(t) Austin's perverse and unin- the Institutes is not quite oon- 

telligent criticism of this perfectly- sistent or oomplete. See Mr. 

rational terminology has been Moyle's notes on I. iv. 5. 
treated with far more respect than 



RELATION OF WRONG TO DAMAGE. 19 

negligence, or in order to sharpen men's preoaution in 
liazardons matters by not even allowing them, when harm 
is onoe done, to prove that they have been diligent, the 
mere fact of the mischief happening gives birth to the 
obligation. In the cases of carriers and innkeepers a 
similar liability is a very ancient part of onr law. What- 
ever the original reason of it may have been as matter of 
history, we may be sure that it was something quite unlike 
the reasons of policy governing the modem class of cases 
of which Rylanda v. Fletcher {u) is the type and leading 
authority; by such reasons, nevertheless, the rules must 
be defended as part of the modem law, if they can be 
defended at all. 

On the whole, the result seems to be partly negative, but Summary, 
also not to be barren. It is hardly possible to frame a 
definition of a tort that will satisfy all the meanings in 
which the term has been used by persons and in documents 
of more or less authority in our law, and will at the same 
time not be wider than any of the authorities wairant. 
But it appears that this difficulty or impossibility is due to 
particular anomalies, and not to a total want of general 
principles. Disregarding those anomalies, we may tiy to 
sum up the normal idea of tort somewhat as follows : — 

Tort is an act or omission (not being merely the breach 
of a duty arising out of a personal relation, or undertaken 
by contract) which is related to harm suffered by a deter- 
minate person in one of the following ways : — 
■ (a) It may be an act which, without lawful justification 

or excuse, is intended by the agent to cause harm, 

and does cause the harm complained of. 
(b) It may be an act in itself contrary to law, or an 

{u) L. E. 3 H. L. 330. See Oh. XII. below. 

c2 



20 THE NATUBE OF TOBT IN GEKERAL. 

omiflsion of speoifio legal dufyi whidb eatifl68 harm 
not intended by the person so acting or omitting. 

(c) It may be an act or omission oansing harm whioh the 
person so acting or omitting did not intend to 
cause, but might and should with due diligenoe 
have foreseen and prevented. 

(d) It may, in special cases, consist merely in not 
avoiding or preventing harm whidb the party was 
bound, absolutely or within limits, to avoid or 
prevent. 

A special duty of this last kind may be (i) absolute, 
(ii) limited to answering for harm whioh is assignable to 
negligence. 

In some positions a man becomes, so to speak, an insurer 
to the public against a certain risk, in others he wairants 
only that all has been done for safety that reasonable care 
can do. 

Connected in principle with these special liabilities, but 
running through the whole subject, and of constant occur- 
rence in almost every division of it, is the rule that a 
master is answerable for the acts and defaults of his ser- 
vants in the course of their employment. 

This is indication orather than definition : but to have 
guiding principles indicated is something. We are entitled, 
and in a manner boimd, not to rush forthwith into a 
detailed enumeration of the several classes of torts, but to 
seek first the common principles of liability, and then the 
common principles of immunity which are known as matter 
of justification and excuse. There are also special condi- 
tions and exceptions belonging only to particular branches, 
and to be considered, theref ore, in the places appropriate 
to those branches. 



21 



CHAPTER n. 



PBINaPLES OF LIABILITY. 



There is no express authority that I know of for stating Want of 
as a general proposition of English law that it is a wrong ^^ij ^ 
to do wilful harm to one's neighbour without lawful justi- ^^' 
fication or excuse. Neither is there any express authority 
for the general proposition that men must perform their 
contracts. Both principles are in this generality of form 
or conception, moderUi and there was a time when neither 
was true. Law begins not with authentic general princi- 
ples, but with enumeration of particular remedies. There 
is no law of contracts in the modem lawyer's sense, only a 
list of certain kinds of agreements which may be enforced. 
Neither is there any law of delicts, but only a list of cer- 
tain kinds of injury which have certain penalties assigned 
to them. Thus in the Anglo-Saxon and other early Ger- 
manic laws we find minute assessments of the compensation 
due for hurts to every member of the human body, but 
there is no general prohibition of personal violence ; and a 
like state of things appears in the fragments of the Twelve 
Tables {a). Whatever agreements are outside the specified 



(a) In Gains iii. 223, 224, the 
contrast between the ancient law 
of fixed penalties and the modem 
law of damages assessed by judicial 
anthority is dearly shown. The 
student will remember that, as re- 
gards the stag^ of derelopment at- 
tained, the law of Justinian, and 
often that of Gains, is far more 



modem than the English law of 
the Year-Books. Perhaps the his- 
torioal contrast holds only in 
Europe: see a note in L. Q. B. 
ix. 97, showing that among the 
Kaohins on the Burmese frontier 
claims for unliquidated damages 
are not only known but freely 
assignable. 



22 PRINCIPLES OF LUBILITY. 

forms of obligation and modes of proof are incapable of 
enforcement; whatever injuries are not in the table of 
compensation must go without legal redress. The phrase 
damnum sine inhiria^ which for the modem law is at best 
insignificant, has meaning and substance enough in such 
a system. Onlj that harm which falls within one of the 
specified categories of wrong-doing entitles the person 
aggrieved to a legal remedy. 

General %uxh is not the modem way of regarding legal duties or 

duty not , , . •* 

to do harm remedies. It is not only certain favoured kinds of agree- 
Uw^ ^™ ment that are protected, but all agreements that satisfy 
certain general conditions are valid and binding, subject 
to exceptions which are themselves assignable to general 
principles of justice and policy. So we can be no longer 
satisfied in the region of tort with a mere enumeration of 
actionable injuries. The whole modem law of negligence, 
with its many developments, enforces the duty of f ellow- 
dtizens to observe in varying circumstances an appropriate 
measure of prudence to avoid causing harm to one another. 
The situations in which we are under no such duty appear 
at this day not as normal but as exceptional. A man cannot 
keep shop or walk into the street without being entitled to 
expect and bound to practise observance in this kind, as 
we shall more fully see hereafter. If there exists, then, a 
positive duty to avoid harm, much more must there exist 
the negative duty of not doing wilful harm; subject, as all 
general duties must be subject, to the necessary exceptions. 
The three main heads of duty with which the law of torts 
is concerned — ^namely, to abstain from wilful injury, to 
respect the property of others, and to use due diligence to 
avoid causing haxm to others — are all alike of a comprehen- 
sive nature. As our law of contract has been generalized 
by the doctrine of consideration and the action of assumpsit^ 



SPECIFIC DUTIES. 28 

80 has our law of civil wrongs hy the wide and various 
application of actions on the case (&)• 

The commission of an act specifically forbidden by law. Acts in 
or the omission or failure to perform any duty specifically g^^o 
imposed by law, is generally equivalent to an act done with l^^firalduty. 
intent to cause wrongful injury. Where the harm that 
ensues from the unlawful act or omission is the very kind 
of harm which it was the aim of the law to prevent (and 
this is the commonest case), the justice and necessity of 
this rule are manifest without further comment. Where 
a statute, for example, expressly lays upon a railway com- 
pany the duty of fencing and watching a level crossing, 
this is a legislative declaration of the diligence to be 
required of the company in providing against harm to 
passengers using the road. Even if the mischief to be 
prevented is not such as an ordinary man would foresee 
as the probable consequence of disobedience, there is some 
default in the mere fact that the law is disobeyed ; at any 
rate a court of law cannot admit discussion on that point ; 
and the defaulter must take the consequences. The old- 
fashioned distinction between mala prohihita and niala in se 
is long since exploded. The simple omission, after notice, 
to perform a legal duty, may be a wilful offence within the 
meaning of a penal statute {c). As a matter of general 
policy, there are so many temptations to neglect public 
duties of all kinds for the sake of private interest that the 
addition of this quasi-penal sanction as a motive to their 
observance appears to be no bad thing. Many public 
duties, however, are wholly created by special statutes. In 
such cases it is not an universal proposition that a breach 

(h) The dereloped Eoman law pIoribuB modis admitti inioriam 

had either attained or was on the manifeetum est'' : I. iy. 4, 1. 
point of attaining a like geneiality (c) GuUy y. Smith (1883) 12 

of appUcation. <*Deniqne alu3 Q. B. D. 121, 63 L. J. M. C. 36. 



34 PRINCIPLEfl OP LIABILITY. 

of the duty confers a private right of action on any and 
every person who suffers particular damage from it. The 
extent of the liabilities incident to a statutory duty must 
be ascertained from the scope and terms of the statute 
itself. Acts of Parliament often contain special provisions 
for enforcing the duties declared by them, and those provi- 
sions may be so framed as to exclude expressly, or by 
implication, any right of private suit (d). Also there is no 
cause of action where the damage complained of '^ is some- 
thing totally apart from the object of the Act of Parlia- 
ment/' as being evidently outside the mischiefs which it 
was intended to prevent. What the legislature has 
declared to be wrongful for a definite purpose cannot be 
therefore treated as wrongful for another and different 
|purpose(«). 

Duty of As to the duty of respecting proprietary rights, we have 
^^^^^5 already mentioned that it is an absolute one. Further 

illustration is reserved for the special treatment of that 

division of the subject. 

Dnties of Then we have the general duty of using due care and 
caution. What is due care and caution under given cir- 
cumstances has to be worked out in the special treatment 
of negligence. Here we may say that, generally speaking, 
the standard of duty is fixed by reference to what we 
should expect in the like case from a man of ordinary 
sense, knowledge, and prudence. 

Aasump- Moreover, if the party has taken in hand the conduct of 
lS?i anything requiring special skill and knowledge, we require 

{d) AtkifuoH T. NeweattU Water- {«) Gorrit r. Seott (1874) L. R. 

worki Co, (1877) 2 Ex. Diy. 441, 9 Ex. 126, 43 L. J. Eic. 92 ; Ward 
46 L. J. Ex. 775. T. Hobbi (1878) 4 App. Ca. 13, 23, 

48 L. J. Q. B. 281. 



DILIGENCE AND COMPETENCE, 25 

of him a competent measure of the skill and knowledge 
usually found in persons who undertake such matters. 
And this is hardly an addition to the general rule ; for a 
man of common sense knows wherein he is competent and 
wherein not, and does not take on himself things in which 
he is incompetent. If a man will drive a carriagCi he is 
bound to have the ordinary competence of a coachman ; 
if he will handle a ship, of a seaman ; if he will treat a 
wound, of a surgeon ; if he will lay bricks, of a bricklayer; 
and so in eveiy case that can be put. Whoever takes on 
himself to exercise a craft holds himself out as possessing 
at least the conmion skill of that craft, and is answerable 
accordingly. If he fails, it is no excuse that he did the 
best he, being unskilled, actually could. He must be 
reasonably skilled at his peril. As the Eomans put it, 
imperitia culpae adnumeratur (/). A good rider who goes \ 
out with a horse he had no cause to think ungovernable, 
and, notwithstanding all he can do to keep his horse in 
hand, is run away with by the horse, is not liable for what 
mischief the horse may do before it is brought under con- 
trol again {g) ; but if a bad rider is run away with by a 
horse which a fairly good rider could have kept in order, 
he will be liable. An exception to this principle appears 
to be admissible in one uncommon but possible kind of ^\y.* 
circumstances, namely, where in emergency, and to avoid 
imminent risk, the conduct of something generally en- 
trusted to skilled persons is taken by an imskilled person ; 
as if the crew of a steamer were so disabled by tempest or 
sickness that the whole conduct of the vessel fell upon an 
engineer without knowledge of navigation, or a sailor 

(/) D. 60. 17, de diy. reg. iuris (^) Hammaek y. WhiU (1862) 11 

antiqni, 132 ; cf. D. 9. 2, ad legem C. B. N. S. 688, 31 L. J. C. P. 

Aquiliam, S. Both passages are 129 ; Solmea y. Mather (1876) L. B. 

from Gains. 10 Ex. 261, 44 L. J. Ex. 176. 



^Exception 
of neoes- 



26 



PRINCIPLES OF LUBILITY, 



Liability 
in relatioii 
to conse- 
quenoes 
of act or 
default. 



without knowledge of Bteam-engines. So if the driver 
and stoker of a train were both disabled, say by sunstroke 
or lightning, the guard, who is presumably unskilled as 
oonoems driving a looomotive, is evidently not bound to 
perform the driver's duties. So again, a person who is 
present at an accident requiring immediate '^ first aid," no 
skilled aid being on the spot, must act reasonably accord- 
ing to common knowledge if he acts at all ; but he cannot 
be answerable to the same extent that a surgeon would 
be. There does not seem to be any distinct authority for 
such cases ; but we may assume it to be law that no more 
is required of a person in this kind of situation than to 
make a prudent and reasonable use of such skill, be it 
much or little, as he actually has. 

We shall now consider for what consequences of his 
acts and defaults a man is liable. When complaint is 
made that one person has caused harm to another, the first 
question is whether his act {h) was really the cause of that 
harm in a sense upon which the law can take action. The 
harm or loss may be traceable to his act, but the connexion 
may be, in the accustomed phrase, too remote. The 
maxim " In iure non remota causa sed proxima spectatur " 
is Englished in Bacon's constantly cited gloss : " It were 
infinite for the law to judge the causes of causes, and their 
impulsions one of another: therefore it contenteth itself 
with the immediate cause ; and judgeth of acts by that, 
without looking to any further degree "(t). Liability 
must be founded on an act which is the ^^ immediate cause'* 



{h) For shortnefls' sake I shall 
often use the word "act" alone as 
equiyalent to '' act or default.*' 

(t) Maxims of the Law, Reg. 1. 
It is remarkable that not one of 
the examples adduced by Baoon 



belongs to the law of torts, or 
raises a question of the measure 
of damages. There could be no 
stronger iUustration of the ex- 
tremelj modem character of the 
whole subject as now understood. 



MEASURE OF DAMAGES, 27 

of harm or of injury to a right. Again, there may have 
been an undoubted wrong, but it may be doubted how 
much of the harm that ensues is related to the wrongful 
act as its ''immediate cause/' and therefore is to be 
counted in estimating the wrong-doer's liability. The 
distinction of proximate from remote consequences is 
needful first to ascertain whether there is any liability at 
all, and then, if it is established that wrong has been 
comnutted, to settle the footing on which compensation 
for the wrong is to be awarded. The normal form of Moasurcof 
compensation for wrongs, as for breaches of contract, in ™ 
the procedure of our Superior Courts of common law has 
been the fixing of damages in money by a jury under the 
direction of a judge. It is the duty of the judge (k) to 
explain to the jurors, as a matter of law, the footing upon 
which they should calculate the damages if their verdict is 
for the plaintiff. This footing or scheme is called the 
'' measure of damages." Thus, in the common case of a 
breach of contract for the sale of goods, the measure of 
damages is the difference between the price named in the 
contract and the market vcdue of the like goods at the time 
when the contract was broken. In cases of contract there 
is no trouble in separating the question whether a contract 
has been made and broken from the question what is the 
proper measure of damages (/). But in cases of tort the 
primary question of liability may itself depend, and it 
often does, on the nearness or remoteness of the harm com- 
plained of. Except where we have an absolute duty and 
an act which manifestly violates it, no clear line can be 
drawn between the rule of liability and the rule of com- 

(A*) Hadley t. Baxendale (1854) mnst, indeed, often torn on the 

9 Ex. 341, 23 L. J. Ex. 179. measure of damages. But this 

(Q Whether it is practically need not concern us here, 
worth while to sue on a contract 



38 PBINCIPLEB OF UABILITT. 

pensatioii. The measure of damages, a matter appearing 
at first sight to belong to the law of remedies more than 
of '^ antecedent rights/' constantly involves, in the field of 
torts, points that are in truth of the very substance of the 
law. It is under the head of *^ measure of damages " that 
these for the most part occur in practice, and are familiar 
to lawyers; but their real connexion with the leading 
principles of the subject must not be overlooked here. 

If eaning The meaning of the term '^ immediate cause " is not 
diate ^ Capable of perfect or general definition. Even if it had an 



oauae." 



ascertainable logical meaning, which is more than doubtful, 
it would not follow that the legal meaning is the same. 
In fact, our maxim only points out that some consequences 
are held too remote to be counted. What is the test of 
remoteness we still have to inquire. The view which I 
shall endeavour to justify is that, for the purpose of civil 
liability, those consequences, and those only, are deemed 
" immediate," " proximate," or, to anticipate a little, 
** natural and probable," which a person of average com- 
petence and knowledge, being in the like case with the 
person whose conduct is complained of, and having the like 
opportunities of observation, might be expected to foresee 
as likely to follow upon such conduct. This is only where 
the particular consequence is not known to have been 
intended or foreseen by the actor. If proof of that be 
forthcoming, whether the consequence was ^* immediate " 
or not does not matter. That which a man actually 
foresees is to him, at all events, natural and probable. 

liability In the case of wilful wrong-doing we have an act 

qnences " intended to do harm, and harm done by it. The inference 

act^^^^ of liability from such an act (given the general rule, and 

assuming no just cause of exception to be present) may 



CONSEQUENCES. 29 

seem a plain matter. But even in thifl first case it is not 
so plain as it seems. We have to consider the relation of 
that which the wrong-doer intends to the events which in 
fact are brought to pass by his deed ; a relation which is 
not constant, nor always evident. A man strikes at another 
with his fist or a stick, and the blow takes effect as he meant 
it to do. Here the connexion of act and consequence is 
plain enough, and the wrongful actor is liable for the re- 
sulting hurt. But the consequence may be more than was it extends 
intended, or different. And it may be different either in ooiue- 
respect of the event, or of the person affected. Nym 2^°^ 
quarrels with Pistol and knocks him down. The blow is t«nded. 
not serious in itself, but Pistol falls on a heap of stones 
which cut and bruise him. Or they are on the bank of a 
deep ditch; Nym does not mean to put Pistol into the 
ditch, but his blow throws Pistol off his balance, whereby 
Pistol does fall into the ditch, and his clothes are spoilt. 
These are simple cases where a different consequence from 
that which was intended happens as an incident of the same 
action. Again, one of Jack Cade's men throws a stone at 
an alderman. The stone misses the alderman, but strikes 
and breaks a jug of beer which another citizen is carrying. 
Or Nym and Bardolph agree to waylay and beat Pistol 
after dark. Poins comes along the road at the time and 
place where they expect Pistol ; and, taking him for Pistol, 
Bardolph and Nym seize and beat Poins. Clearly, just as 
much wrong is done to Poins, and he has the same daim to 
redress, as if Bardolph and Nym meant to beat Poins, and 
not Pistol (m). Qr, to take an actual and well-known case 

(m) In (sriminal law there ia Bome is in no way exoosed by the min- 

difficulty in the case of attempted take, and cannot be heard to say 

personal offences. There is no that he had no unlawful intention 

doubt that if A. shoots and kills as to X. : J2. ▼. Smith (1855) Dears, 

or wounds X., under the belief 559. But if he misses, it seems 

that the man he shoots at is Z., he doubtful whether he can be said 



30 



PRINCIPLES OF LIABILITY. 



in our books (n), Shepherd throws a lighted squib into a 
building full of people, doubtless intending it to do mis- 
chief of some kind. It falls near a person who, by an 
instant and natural act of self-proteotion, oasts it from him. 
A third person again does the same. In this third flight 
the squib meets with Soott, strikes him in the face, and 
explodes, destroying the sight of one eye. Shepherd 
neither threw the squib at Scott, nor intended such grave 
harm to any one ; but he is none the less liable to Scott. 
And so in the other cases put, it is dear law that the 
wrong-doer is liable to make good the consequences, and it 
is likewise obvious to common sense that he ought to be. 
He went about to do harm, and having begun an act of 
wrongful mischief, he cannot stop the risk at his pleasure, 
nor confine it to the precise objects he laid out, but must 
abide it fully and to the end. 

"Natural This principle is commonly expressed in the maxim that 
quenceii:" |'' & uiau is presumed to intend the natural consequences of 
t^rSe tof^ acts:" a proposition which, with due explanation and 
the actor's within due limits, is acceptable, but which in itself is 

intention. , 

ambiguous. To start from the simplest case, we may know 
that the man intended to produce a certain consequence, and 
did produce it. And we may have independent proof of 
the intention ; as if he announced it beforehand by threats 
or boasting of what he would do. But oftentimes the act 



to have attempted to kill either X. 
or Z. Cf. JJ. V. Latimer (1886) 17 
Q. B. D. 869, 55 L. J. M. G. 135. 
In Grcrmany there Ib a whole litera- 
ture of modem oontroyerej on the 
subject. See Dr. R. Franz, ** Vor- 
stellnng nnd Wille in der modemen 
Boluslehrei" Ztsch. fiir die gesamte 
Strafrechtswiflsenflchaft, x. 169. 
(n) Swtt T. Sheph^, 2 W. Bl. 



892 ; and in 1 Sm. L. C. No doubt 
was entertained of Shepherd's lia- 
bility ; the only question being in 
what form of action he was liable. 
The inference of wrongful inten- 
tion is in this case about as ob« 
vious as it can be ; it was, however, 
not necessary, squib-throwing, as 
Kares J. pointed out, haying been 
dedared a nuiMnoe by statute. 



CONSEQUENCES, 31 

itself is the chief or sole proof of the intention with which 
it is done. If we see Nym walk up to Pistol and knock 
him down, we infer that Pistol's fall was intended by Nym 
as the consequence of the blow. We may be mistaken in 
this judgment. Possibly Nym is walking in his sleep, and 
has no real intention at all, at any rate none which can be 
imputed to Nym awake. But we do naturally infer inten- 
tion, and the chances are greatly in favour of our being 
right. So nobody could doubt that when Shepherd threw 
a lighted squib into a crowded place he expected and meant 
mischief of some kind to be done by it. Thus far it is a 
real inference, not a presumption properly so called. Now 
take the case of Nym knocking Pistol over a bank into the 
ditch. We will suppose there is nothiog (as there well may 
be nothing but Nym's own worthless assertion) to show 
whether Nym knew the ditch was there ; or, if he did know, 
whether he meant Pistol to fall into it. These questions 
are like enough to be insoluble. How shall we deal with 
them ? We shall disregard them. From Nym's point of 
view his purpose may have been simply to knock Pistol 
down, or to knock him into the ditch also ; from Pistol's 
point of yiew the grievance is the same. The wrong-doer 
cannot call on us to perform a nice discrimination of that 
which is willed by him from that which is only conse- 
quential on the strictly wilful wrong. We say that inten- 
tion is presumed, meaning that it does not matter whether 
intention can be proved or not ; nay, more, it would in the 
majority of cases make no difference if the wrong-doer 
could disprove it. Such an explanation as this — ''I did 
mean to knock you down, but I meant you not to fall into 
the ditch" — would, even if believed, be the lamest of 
apologies, and it would no less be a vain excuse in law. 

The habit by which we speak of presumption comes MMoing 



32 



PRINCTPLES OP LIABILITY. 



of <<iia- probaUj from the time when, inasmuoh as parties could 
probable" ^ot give evidenoey intention could hardlj ever be matter 
qw^. ^^ direct proof. Under the old system of pleading and 
procedure, Brian C. J. might well say, '^ the thought of 
man is not triable " (o). Still there is more in our maxim 
than this. For although we do not care whether the man 
intended the particular consequence or not, we have in 
mind such consequences as he might have intended, or, 
without exactly intending them, contemplated as possible ; 
so that it would not be absurd to infer as a fact that he 
either did mean them to ensue, or recklessly put aside the 
risk of some such consequences ensuing. This is the limit 
introduced by such terms as " natural " — or more fully, 
''natural and probable" — consequence (js?). What is 
natural and probable in this sense is commonly, but not 
always, obyious. There are consequences which no man 
could, with common sense and observation, help foreseeing. 
There are others which no human prudence could have 
foreseen. Between these extremes is a middle region of 
various probabilities divided by an ideal boundary which 
will be differently fixed by different opinions ; and as we 
approach this boundary the difficulties increase. There is 
a point where subsequent events are, according to common 
imderstanding, the consequence not of the first wrongful 
act at all, but of something else that has happened in the 
meanwhile, though, but for the first act, the event might 
or could not have been what it was (q). But that point 



(o) Tear-Book 17 Edw. IV. 1, 
translated in Blackburn on Sale, 
at p. 193 in 1st ed., 261 in 2nd ed. 
by Graham. 

(p) ** Normal, or likely or prob- 
able of oocnrrence in the ordinary 
course of things, would perhaps 
be the better expression'* : Grore 



J. in Smith r. Green, 1 C. P. D. 
at p. 96. But what is normal or 
lilcely to a specialist may not be 
normal or likely to a plain man's 
knowledge and experience. 

{q) Thus Quain J. said {Sneetby 
y. X. ^ r. Sail. Co., L. R. 9 Q. B. 
at p. 268}: << In tort the defendant 



CONSEQUENCES, 33 

cannot be defined bj Bdenoe or philosoplij (r) ; and even if it 
oouLi, the definition would not be of muoh use for the 
guidance of juries. If English law seems vague on these 
questions, it is because, in the analysis made necessary by 
the separation of findings of fact from conclusions of law, 
it has grappled more closely with the inherent vagueness 
of facts than any other system. We may now take some 
illustrations of the rule of '^ natural and probable conse- 
quences " as it is generally accepted. In whatever form 
we state it, we must remember that it is not a logical 
definition, but only a guide to the exercise of common 
sense. The lawyer cannot afford to adventure himself 
with philosophers in the logical and metaphysical con- 
troversies that beset the idea of cause. 

In Vandenburgh v. Truax («), decided by the Supreme Vanden' 
Court of New York in 1847, the plaintiff's servant and the TruaJ, 
defendant quarrelled in the street. The defendant took 
bold of the servant, who broke loose from him and ran 
away; ''the defendant took up a pick-axe and followed 
the boy, who fled into the plaintiff's store, and the de- 
fendant pursued him there, with the pick-axe in his hand." 
In running behind the counter for shelter the servant 
knocked out the faucet from a cask of wine, whereby the 
wine ran out and was lost. Here the defendant (whatever 
the merits of the original quarrel) was clearly a wrong- 
doer in pursuing the boy; the plaintiff's house was a 
natural place for his servant to take refuge in, and it was 

18 liable for all the ooiiBeqoeiioeB difficulty in philoaophj as in 

of his illegal act, where they are law" : 8eUm y. Lafme (1887) 19 

not 80 remote ae to have no direot Q. B. Diy. at p. 74, 66 L. J. Q. B. 

connexion with the act, as by the 415. 

lapse of time for instance." («) 4 Denio, 464. The decision 

(r) <* The doctrine of caasalion," seems to be generally accepted as 

said Fry L. J., "iuTolyes much good law. 

P. n 



34 



PRINCIPLES OF LLLBILITT. 



OuiOiY. 
Swan, 



also natural that the Bervant, " fleeing for his life from a 
man in hot pnnrait armed with a deadly weapon/' should^ 
in his hastj movements, do some damage to the plaintiff's 
property in the shop. 

There was a curious earlier ease in the same State {t)j 
where one Gkdlle, after going up in a balloon, came down 
in Swan's garden. A crowd of people, attracted by the 
balloon, broke into the garden and trod down the vege- 
tables and flowers. Qxiille's descent was in itself plainly 
a trespass ; and he was held liable not only for the damage 
done by the balloon itself but for that which was done by 
the crowd. ^^ If his descent under such drcumstanoes 
would, ordinarily and naturally, draw a crowd of people 
about him, either from curiosity, or for the purpose of 
rescuing him from a perilous situation ; all this he ought 
to have foreseen, and must be responsible for" {u). In 
both these cases the squib case was commented and relied 
on. Similarly it has many times been said, and it is 
imdoubted law, that if a man lets loose a dangerous 
animal in an inhabited place he is liable for all the 
mischief it may do. 

Liability The balloon case illustrates what was observed in the 

quen^of ^^ chapter on the place of trespass in the law of torts. 

trespass, rpj^^ trespass was not in the common sense wilful ; Ghiille 

certainly did not mean to come down into Swan's garden, 

which he did, in fact, with some danger to himself. But 

a man who goes up in a balloon must know that he has to 



(0 Ouill* y. Swan (1822) 19 
Johns. 881. 

(«) PerSpenoerCJ. It appeared 
that the defendant (plaintifE in 
error) had called for help ; but this 
was treated as immaterial. The 
reoent Scottish case of ScoU^a 



Truitm V. Mom (1889), 17 Ot. of 
Sess. 0. 4th S. 32, is hardly so 
strong, for there a parachute 
descent was not only contemplated 
but advertised as a public enter- 
tainment. 



BSH0TENES8 OF DAMAGE. 36 

come down somewheie, and that lie cannot be sure of 
coming down in a place whidi he is entitled to use for 
that pnipoae, or where his descent will cause no damage 
and excite no objection. Ghiille's liability was accordingly 
the same as if the balloon had been under his control, and 
he had guided it into Swan's garden. If balloons were as 
manageable as a yessel at sea, and by some accident which 
could not be ascribed to any fault of the traveller the 
steering apparatus got out of order, and so the balloon 
drifted into a neighboiur's garden, the result might be 
different. So, if a landslip carries away my land and 
house from a hillside on which the house is built, and 
myself in the house, and leaves all overlying a neighbour's 
field in the vaUey, it cannot be said that I am liable for 
the damage to my neighbomr's land ; indeed, there is not 
even a technical trespass, for there is no voluntary act at 
all. But where trespass to property is committed by a 
voluntary act, known or not known to be an infringement 
of another's right, there the trespasser, as regards liability 
for consequences, is on the same footing as a wilful 
wrong-doer. 

A simple example of a consequence too remote to be Gonse- 
ground for liability, though it was part of the incidents remote: 
following on a wrongful act, is afforded by Glover v. x. ^ sJjF. 
London and South Western Bailtoay Company (t?). The ^^^' ^' 
plaintiff, being a passenger on the railway, was charged 
by the company's ticket collector, wrongly as it turned out, 
with not having a ticket, and was removed from the trails 
by the company's servants with no more force than was 
necessary for the purpose. He left a pair of race-glasses 
in the carriage, which were lost ; and he sought to hold 

(9) (1867) l. b. 8 q. b. 26, 37 l. j. q. b. 67. 

d2 



36 PBIKCIPLE8 OF UABIUIT. 

the oompanj liable not only for the peoRBonal aaaanlt oom- 
mitted by taking him out of the train, but for the value of 
these glasses. The Court held without difficulty that the 
loss was not the ^* necessary consequence " or " immediate 
result " of the wrongful act : for there was nothing to show 
that the plaintiff was prevented from taJdng his gksses 
with him, or that he would not have got them if after 
leaving the carriage he had asked for them. 

Qnestioii In criminal law the question not unfrequently occurs, on 
kiii^^in" a charge of murder or manslaughter, whether a certain act 
y™"^'**^ or neglect was the " immediate cause " of the death of the 
deceased person. We shall not enter here upon the cases 
on this head; but the comparison of them will be found in- 
teresting. They are collected by Sir James Stephen {x). 

Liabilitj The doctrine of ^' natural and probable consequence " is 
genoe most dearly illustrated, however, in the law of negligence. 
on^]^" For there the substance of the wrong itself is failure to 
bability of -^t -^j^ d^e foresight : it has been defined as " the omis- 
qnenoe, Ision to do something which a reasonable man, guided upon 
capability phose Considerations which ordinarily regulate the conduct 
JlJj^^ lof human affairs, would do, or doing something which a 
^ * , rorudent and reasonable man would not do " (y). Now a 
inaa« reasonable man can be guided only by a reasonable esti** 
mate of probabilities. If men went about to guard them-* 
selves against every risk to themselves or others which 
might by ingenious conjecture be conceived as possible, 
human affairs could not be carried on at alL The reason- 
able man. then, to whose ideal behaviour we are to look as 

{x) Digest of the Oiiminal Law, Thia is not a oomplete definition, 

Alts. 219, 220. sinoe a man is not liable for even 

(y) Alderson B. in JBfyth y. wilful omission without some ante- 

JBirmingham Watsrworkt Co. (1856) cedent ground of duty. But of 

U Ex. 781, 25 L. J. Ex. 212. that hereafter. 



PROXIMATE OR REMOTE CAUSE. 37 

the standard of duty, will neither negleot what he can fore- 
cast as probable, nor waste his anxietj on events that are 
barelj possible. He will order his precaution bj the 
measure of what appears likelj in the known course of 
things. This being the standard, it follows that if in a 
particular case (not being within certain special and more 
stringent rules) the harm complained of is not such as a 
reasonable man in the defendant's place should have fore- 
seen as likely to happen, there is no wrong and no liability. 
And the statement proposed, though not positively laid 
down, in Cfreenland v. Chaplin (»), namely, " that a person 
is expected to anticipate and guard against all reasonable 
consequences, but that he is not, by the law of England, 
expected to anticipate and guard against that which no 
reasonable man would expect to occur," appears to contain 
the only rule tenable on principle where the liability is 
founded solely on negligence. '^ Mischief which could by 
no possibility have been foreseen, and which no reasonable 
person would have anticipated," may be the ground of 
legal compensation under some rule of exceptional severity, 
and such rules, for various reasons, exist; but under an 
ordinary rule of due care and caution it cannot be taken 
into account. 

We shall now give examples on either side of the line. ExamploB 
In Silly. New River Company (a), the defendant company HiU v. 
had in the course of their works caused a stream of water a>. 
to spout up in the middle of a public road, without making 
any provision, such as fencing or watching it, for the 
safety of persons using the highway. As the plaintiff's 
horses and carriage were being driven along the road, the 

(z) Per Pollock 0. B. (1850) 6 Harrit y. Mohbt (Denman J. 1878) 
Ex. at p. 248. 3 Ex. D. 268, which, perhaps, 

(a) 9 B. & S. 303 (1868) ; op. goes a step farther. 



88 PBINdPLES OF LIABIUTT. 

horses shied at the -water, dashed aoross the road, and fell 
into an open excavation by the roadside which had been 
made bj persons and for purposes unconnected with the 
water company. It was argued that the immediate cause 
of the injuries to man, horses, and carriage ensuiing upon 
this fall was not the unlawful act of the water company, 
but the neglect of the contractors who had made the cutting 
in leaving it open and unfenced. Sut the Court held that 
the " proximate cause " was ^^ the first negligent act which 
drove the carriage and horses into the excavation." In 
fact, it was a natural consequence that frightened horses 
should bolt oS. the road ; it could not be foreseen exactly 
where they would go off, or what they might run against 
or fall into. Sut some such harm as did happen was 
probable enough, and it was immaterial for the purpose 
in hand whether the actual state of the ground was 
temporary or permanent, the work of nature or of man. 
If the carriage had gone into a river, or over an embank- 
ment, or down a precipice, it would scarcely have been 
possible to raise the doubt. 

Wiilianu Williams v. Great Western Railway Company {b) is a 
iaii Col stronger case, if not an extreme one. There were on a 
portion of the company's line in Denbighshire two level 
crossings near one another, the railway meeting a carriage- 
road in one place and a footpath (which branched off from 
the road) in the other. It was the duty of the company 
under certain Acts to have gates and a watchman at the 
road crossing, and a gate or stUe at the footpath crossing ; 
but none of these things had been done. 

" On the 22nd December, 1871, the plaintiff, a child of 
four and a-half years old, was found lying on the rails by 

(h) L. E. 9 Ex. 167, 43 L. J. Ex. Central Rail, Co. (1883) HI U. S. 
105 (1874). Gp. Soffet v. Miehigan 228. 



PROXIMATE OB REMOTE GAUBE. 39 

the footpath, with one foot severed from his bodj. There 
was no evidence to show how the ohild had oome there, 
beyond this, that he had been sent on an errand a few 
minutes before from the cottage where he lived, which laj 
bj the roadside, at about 300 yards distance from the rail- 
way, and farther from it than the point where the footpath 
diverged from the road. It was suggested on the part of 
the defendants that he had gone fdong the road, and then, 
reaching the railway, had strayed down the line ; and on 
the part of the plaintifi, that he had gone along the open 
footpath, and was crossing the line when he was knocked 
down and injured by the passing train." 

On these facts it was held that there was evidence proper 
to go to a jury, and on which they might reasonably find 
that the accident to the child was caused by the railway 
company's omission to provide a gate or stile. " One at 
least of the objects for which a gate or stile is required is 
to warn people of what is before them, and to make them 
pause before reaching a dangerous place like a rail- 
road "(c). 

In Bailiffs of Rotnney Marsh v. Trinity House ((/), a BaiUfiof 
Trinity House cutter had by negligent navigation struck on Martk y. 
a shoal about three-quarters of a mile outside the plaintiffs' ^^J^f 
sea-wall. Becoming unmanageable, the vessel was in- 
evitably driven by strong wind and tide against the sea- 
wall, and did much damage to the wall. It was held 
without difficulty that the Corporation of the Trinity 

{e) Amphlett B. at p. 162. E. 466, a brig \fj negligent naii- 

(i) L. B. 6 Ex. 204, 39 L. J. gation ran into a bark, and disabled 

Ex. 163 (1870); in Ex. Ch. L. B. her; the bark was driyen on eihore ; 

7 Ex. 247 (1872). This oomes near held that the owners of the brig 

the case of letting loose a danger- were liable for injury ensuing from 

ous animal ; a drifting vessel is in the wreck of the bark to personson 

itself a dangerous thing. In The board her. 
Otorge and JRichard, L. B. 3 A. & 



40 



PUINCIPLE8 OF LUBIUn. 



Nurdin, 



Oon- 
trastod 
caseeof 
non- 
liabilitj 
and lia- 
bility: 

Coxy. 
Burbidgty 



House was liable (under the ordinajry rule of a master^s 
responsibilitj for his servants, of which hereafter) for this 
damage, as being the direct consequence of the first default 
which rendered the vessel unmanageable. 

Something like this, but not so simple, was Lynch v. 
Nurdin (a), where the owner of a horse and cart left them 
unwatched in the street; some children came up and began 
playing about the cart, and as one of them, the plaintiff in 
the cause, was climbing into the cart another pulled the 
horse's bridle, the horse moved on, and the plaintiff fell 
down under the wheel of the cart and was hiirt. The 
owner who had left the cart and horse imattended was 
held liable for this injury. The Court thought it strictly 
within the province of a jury '^ to pronounce on all the 
circumstances, whether the defendant's conduct was want- 
ing in ordinary care, and the harm to the plaintiff such a 
result of it as might have been expected " (/). 

It will be seen that on the whole the disposition of the 
Courts has been to extend rather than to narrow the range 
of " natural and probable consequences." A pair of cases 
at first sight pretty much alike in their facts, but in one of 
which the claim succeeded, while in the other it failed, will 



(e) 1 Q. B. 29, 10 L. J. Q. B. 73 
(1841); cp. Clark y. Chambert, 3 
Q. B. D. at p. 331. 

(/) This caae was relied on in 
Massachusetts in Powell y. Levmey 
(1849) 3 Gush. 300, where the de- 
fendant's truck had, contrary to 
local regulations, been left out in 
the street for the night, the shafts 
being shored up and projecting into 
the road ; a second truck was simi- 
larlj placed on the opposite side of 
the road: the driyer of a third 
truck, endeayouring with due cau- 



tion, as it was found, to drive past 
through the narrowed fairwaj thus 
left, struck the shafts of the de- 
fendant's truck, which whirled 
round and struck and injured the 
plaintiff, who was on the sidewalk. 
Held, the defendant was liable. If 
the case had been that the shafts 
of the truck remained on the side- 
walk, and the plaintiff afterwards 
stumbled on them in the dark, it 
would be an almost exact parallel 
to Clark y. Chamhert (3 Q. B. D. 
327, 47 L. J. Q. B. 427 ; see below). 



PROXIMATE OB BEMOTE CAUSE. 41 

show where the line is drawn. If a horse esoapes into a Xm t. 
public road and kioks a person who is lawfully on the 
roady its owner is not liable unless he knew the horse to be 
Yidous {g). He was bound indeed to keep his horse from 
straying, but it is not an ordinary consequence of a horse 
being loose on a road that it should kick human beings 
without provocation. The role is different however if a 
horse by reason of a defective gate strays not into the road 
but into an adjoining field where there are other horses, 
and kicks one of those horses. In that case the person 
whose duty it was to maintain the gate is liable to the 
owner of the injured horse (A). 

The leading case of Metropolitan Bail. Co. y. Jackion (i) Jf^trcpoU^ 

iOM Hull 

is in truth of this class, though the problem arose and was co, y. 
considered, in form, upon the question whether there was •^'•***^' 
any evidence of negligence. The plaintiff was a passenger 
in a carriage already over-full. As the train was stopping 
at a station, he stood up to resist yet other persons who 
had opened the door and tried to press in. While he was 
thus standing, and the door was open, the train moved on. 
He laid his hand on the door-lintel for support, and at the 
same moment a porter came up, turned off the intruders, 
and quickly shut the door in the usual manner. The 
plaintiff's thumb was caught by the door and crushed. 
After much difference of opinion in the courts below, 
mainly due to a too literal following of certain previous 
authorities, the House of Lords imanimously held that, 

is) Cox T, Burhidge (1863) 13 0. EUu v. Loftut Iron Cb., L. B. 10 

B. N. S. 430, 82 L. J. 0. P. 89. C. P. 10, 44 L. J. 0. P. 24. 

(A) le0 y. Itiley (1865) 18 0. B. (») 3 App. Ca. 193, 47 L. J. 

N. S. 722, 34 L. J. C. P. 212. 0. P. 303 (1877). Cp. Oobb v. 

Both dedfiioiiB were imammons, O. W. E. Co. '93, 1 Q. B. 459, 62 

and two judges (Erie G. J. and L. J. Q. B. 335, 4 B. 283. 
Keating J.) took part in both. Cp. 



43 



PBINCIPLE8 OF LIABILITY. 



Non- 
liabilitj 
for oon- 
■equenoes 
of unaimal 
state of 
things: 

JBlyth ▼. 

ham 
Water- 
work$ Co 



I 



Sharp V. 
FoicelU 



aflsuming tlie &iliir6 to prevent OYercrowding to be negli- 
gence on the oompany'fl part, the hurt suffered bj the 
plaintiff was not nearly or certainly enough connected 
with it to give him a cause of action. It was an accident 
which might no less haye happened if the carriage had 
not been overcrowded at all. 

Unusual conditions brought about by severe frost have 
more than once been the occasion of accidents on which 
untenable claims for compensation have been founded, the 
Courts holding that the mishap was not such as the party 
charged with causing it by his negligence could reason- 
ably be expected to provide against. In the memorable 
" Crimean winter " of 1854-6 a fire-plug attached to one 
of the mains of the Binningham Waterworks Company 
was deranged by the frost, the expansion of superficifd ice 
forcing out the plug, as it afterwards seemed, and the 
water from the main being dammed by incrusted ice and 
snow above. The escaping water found its way through 
the ground into the cellar of a private house, and the 
occupier sought to recover from the company for the 
damage. The Court held that the accident was manifestly 
an extraordinary one, and beyond any such foresight as 
could be reasonably required {k). Here nothing was 
alleged as constituting a wrong on the company's part 
beyond the mere fact that they did not take extraordinary 
precautions. 

The later case of Sharp v. Powell (/) goes farther, as the 
story begins with an act on the defendant's part which 



{k) Blyth T. Birmingham Water' 
worke Co, (1856) 11 Ex. 781, 26 
L. J. Ex. 212. The question was 
not really of remoteness of damage, 
bat whether there was anj evidence 
of negligence at all; nevertheless 



the case is instractive for com- 
parison with the others here dted. 
Gp. Mayne on Damages, Preface 
to the first edition. 

(/) L. B. 7 G. P. 253, 41 L. J. 
0. P. 96 (1872), 



PBOXDiATE OB SEMOTE CAUSE. 43 

was a dear breach of the law. He oaiued his van to be 
washed in a public street, contrary to the Metropolitan 
Police Act The water ran down a gutter, and would in 
fact {m) (but for a hard frost which had then set in for 
some time) have run harmlessly down a grating into the 
sewer, at a comer some twenty-five yards from where the 
van was washed. As it happened, the grating was frozen 
over, the water spread out and froze into a sheet of ice, 
and a led horse of the plaintiff's slipped thereon and broke 
its knee. It did not appear that the defendant or his 
servants knew of the stoppage of the grating. The Court 
thought the damage was not ^* within the ordinary conse- 
quences " (n) of such an act as the defendant's, not '^ one 
which the defendant could fairly be expected to anticipate 
as Hkely to ensue from his act " (o) : he ^* could not 
reasonably be expected to foresee that the water would 
accumulate and freeze at the spot where the accident 
happened" {p). 

Some doubt appears to be cast on the rule thus laid Question, 
down — which, it is submitted, is the right one — by what role holds 
was said a few years later in Clark v. Chambers (q), though g^encoTof 
not by the decision itself. This case raises the question ^^^^ 

... "wroDgr : 

whether the liability of a wrong-doer may not extend ciarky, 
even to remote and unlikely consequences where the ^*«»»*«'*« 
originfd wrong is a wilful trespass, or consists in the 
unlawful or careless use of a dangerous instrument. The 
main facts were as follows : — 

1. The defendant without authority set a barrier, partly 
armed with spikes (ohevaux-de-frise), across a road subject 
to other persons' rights of way. An opening was at most 

(m) So the Court found, having {p) Bovill 0. J. 

power to dzaw inferenoee of fact. (q) 8 Q. B. D. 327, 47 L. J. 

(n) GiOTe J. Q. B. 427 (1878). 
(o) Keating J. 



44 . PBINCIPLES OP LUBHITY. 

times left in the middle of the barrier^ and was there at 
the time when the mischief happened. 

2. The plaintiS went after dark along this road and 
through the opening, bj the invitation of the ooonpier of 
one of the honses to which the right of using the road 
belonged, and in order to go to that house. 

3. Some one, not the defendant or any one authorized 
by him, had removed one of the ohevaux-de-friBe barriers^ 
and set it on end on the footpath. It was suggested, but 
not proved, that this was done by a person entitled to use 
the road, in exercise of his right to remove the unlawful 
obstruction. 

4. Betuming later in the evening from his friend's 
house, the plaintiff, after safely passing through the central 
opeoiDg above mentioned, turned on to the footpath. He 
there came against the chevaux-de-frise thus displaced 
(which he could not see, the night being very dark), and 
one of the spikes put out his eye. 

After a verdict for the plaintiff the case was reserved 
for further consideration, and the Court (r) held that the 
damage was nearly enough connected with the defendant's 
first wrongful act — namely, obstructing the road with in- 
struments dangerous to people lawfully using it — ^for the 
plaintiff to be entitled to judgment. It is not obvious why 
and how, if the consequence in Clark v. Chambers was 
natural and probable enough to justify a verdict for the 
plaintiff, that in Sharp v. Poircll was too remote to be 
submitted to a jury at all. The Court did not dispute the 
correctness of the judgments in Shaty v. Poicell "as applic- 
able to the circumstances of the particular case;" but their 

(r) Gookbum G. J. and Manisty being liable : a position whioh is 

J. The point chiefly argued for clearly untenable (see Seott y. 

the defendant seems to have been Shepherd) ; bat the judgment is of 

that the intervention of a third wider soope. 
person's act prevented him from 



CX)NS£QU£NC£S» 45 

final obaervatibnB (s) certainly tend to the opinion that in 
a case of active wrong-doing the rule is different. Such 
an opinion, it is submitted, is against the general weight of 
authority, and against the principles underlying the autho- 
rities (t). However, their conclusion may be supported, 
and may have been to some extent determined, by the 
special rule imposing the duty of what has been called 
'^ consummate caution " on persons dealing with dangerous 
instruments. 

Perhaps the real solution is that here, as in Sill v. New Conse- 
JRiver Co. (^), the kind of harm which in fact happened might Sato^in 
have been expected, though the precise manner in which it ^^ , 
happened was determined by an extraneous accident. If not in 
in this case the spikes had not been disturbed, and the gtanoe.' 
plaintiff had in the dark missed the free space left in the 
barrier, and run against the spiked part of it, the defen- 
dant's liability could not have been disputed. As it was, 
the obstruction was not exactly where the defendant had 
put it, but still it was an obstruction to that road which 
had been wrongfully brought there by him. He bad put 
it in the plaintiff's way no less than Shepherd put his squib 
in the way of striking Scott ; whereas in Sfiarp v. Powell 
the mischief was not of a kind which the defendant had 
any reason to foresee. 

The turn taken by the discussion in Clark v. Chambers 
was, in this view, unnecessary, and it is to be regretted 
that a considered judgment was delivered in a form tend- 
ing to unsettle an accepted rule without putting anything 
definite in its place. On the whole, I submit that, whether 
Clark V. Chambers can stand with it or not, both principle 

(«) 8 Q. B. D. at p. 338. for disregard of statutorj proyi- 

{t) Compare the cafles on slander sionsi Gorrit y. Seoit (1874) L. R. 

ooUeoted in the notes to ViMri r. 9 Ex. 125, 43 L. J. Ex. 92. 

JFUcoekt, 2 Sm. L. G. Compare (tt) P. 37, above. 

also, as to conseqaential liabilitj 



. I 



46 



PRIKCIFLES OF UABHITT. 



Damages 
for "ner- 
Toua or 
mental 
Bhook" 
whether 
too re- 
mote. 



and the omrent of auilioritj concur to maintafT) the law 
as dedared in Sharp v. Powell 

Where a wrongful or negligent act of A., threatening 
Z. with immediate hodily hurt, but not causing sudi hurt^ 
produces in Z. a sudden terror or ^^ nervous shock" from 
which hodilj illness afterwards ensues, is this damage too 
remote to enter into the measure of damages if A/s act 
was an absolute wrong, or to give Z. a cause of action if 
actual damage is the gist of the action? The Judicial 
Committee decided in 1888 {u) that such consequences are 
too remote; but it is submitted that the decision is not 
satisf actoiy. A husband and wife were driving in a buggj 
across a level railway crossing, and, through the obvious 
and admitted negligence of the gatekeeper, the buggy was 
nearly but not quite run down by a train ; the husband 
" got the buggy across the line, so that the train, which 
was going at a rapid speed, passed dose to the back of it 
and did not touch it." The wife then and there fainted, 
and it was proved to the satisfaction of the CoTirt below 
*^ that she received a severe nervous shock from the fright, 
and that the illness from which she afterwards suffered 
was the consequence of the fright." It may be conceded 
that the passion of fear, or any other emotion of the mind, 
however painful and distressing it be, and however reason- 
able the apprehension which causes it, cannot in itself be 
regarded as measurable temporal damage; and that the 
judgment appealed from, if and so far as it purported to 
allow any distinct damages for ^^ mental injuries " {x)y was 
erroneous. But their Lordships seem to have treated this 
as obviously involving the further proposition that physical 



(m) Victorian Railwayt CommiS' 
$ioturi y. CouUat, 13 App. Ga. 222. 
67 L. J. P. 0. 69. 

{x) It IB by no means clear that 
BQoh was the intention or effect. 
Bee the report, 12 V. L. B. 896. 



The physioal injuries were enb- 
Btantial enough, zor Aey included 
a miscarriage (i^k^.). Whether that 
was really due to the fright was 
eminently a (question of mot, and 
this was not disputed or discussed. 



CONSEQUENCES. 



47. 



illnefls caused by reasonable fear is on the same footing. 
This does not follow. The true question would seem to be 
whether the fear in which the plaintiff was put by the 
defendant's wrongful or negligent conduct was such as, in 
the circumstances, would naturally be suffered by a person 
of ordinary courage and temper, and such as might there- 
upon naturally and probably lead, in the plaintiff's case (^), 
to the physical effects complained of. Fear taken alone 
falls short of being actual damage, not because it is a 
remote or unlikely consequence, but because it can be 
proTed and measured only by physical effects. The 
opinion of the Judicial Committee, outside the colony of 
Victoria, is as extra-judicial as the contrcuy and (it is 
submitted) better opinion expressed in two places (2) by 
Sir James Stephen as to the possible commission of 
murder or manslaughter by the wilful or reckless inflic- 
tion of " nervous shook," or the later contrary decisions in 
Ireland and New York (a). And if the reasoning of the 
Judicial Committee be correct, it becomes rather difficult 
to see on what principle assault without battery is an 
actionable wrong (a). 



(y) Thifl must be so nnlem we go 
back to the old Ghennanic method 
of a fixed scale of oompensation. 
80, as regfards the xneasnre of 
damages when liability is not 
denied, the defendant has to take 
his chance of the person . disabled 
being a workman, or a tradesman 
in a small way, or a physician with 
a large practice. 

(2) Dig. Gr. Law, note to art. 
221 ; Hiat. Cr. Law, iii. 5. 

(a) Gp. Mr. Beven's criticism of 
this case, Principles of the Law of 
Kegligence, 66^71. As he justly 
points ont, it has never been ques- 
tioned that an action may lie for 
damage done by an animal which 



has been frightened by the defen- 
dant's negligent act : Manchester 
South Jn. R, Co. v. Fullarton (1863) 
14 G. B. N. S. 64 ; Simkin y. L. ^ 
N. W. £. Co. (1888) 21 Q. B. Div. 
453; 69 L. T. 797 ; Brown t. Eastern 
and Midlands S. C7o. (1889) 22 Q. B. 
Div. 391 ; 68 L. J. Q. B. 212. 
The Exchequer Division in Ireland 
has refused to follow this doctrine 
of the Judicial Gommittee : Bell v. 
G. J\r. M. Co. a890) 26 L. R. Ir. 
428. So has tne Supreme Gourt of 
Kew York in an almost identical 
case: Mitehell v. Rochester R. Co. 
(1893), see (New York) Univ. Law 
Rev. i. 10. And see Ames, Sel. Ga. 
on Torts, 16, 16. 



48 



CHAPTER in. 



PERSONS AFFECTED BY T0ET8. 



Penontl 
status, as 
a role, 
imma- 
terial in 
law of 
tort : but 
capacity 
in fact 
may be 
material 



1. — Limitations of Personal Capacity, 

In the law of oontraot yarious grounds of personal dis- 
ability have to be considered with some oare. Infants, 
married women, lunatics, are in different degrees and for 
different reasons incapable of the duties and rights arising 
out of contracts. In the law of tort it is otherwise. 
Generally speaking, there is no limit to personal capacity 
either in becoming liable for civil injuries, or in the power 
of obtaining redress for them. It seems on principle 
that where a particular intention, knowledge, or state of 
mind in the person charged as a wrong-doer is an element, 
as it sometimes is, in constituting the alleged wrong, the 
age and mental capacity of the person may and should be 
taken into account (along with other relevant circum- 
stances) in order to ascertain as a fact whether that in- 
tention, knowledge, or state of mind was present. But in 
every case it would be a question of fact, and no exception 
to the general rule would be established or propounded (a). 
An idiot would scarcely be held answerable for incoherent 
words of vituperation, though, if uttered by a sane man, 



(a) IJlpian, in D. 9, 2, ad leg. 
Aqidl. 6, { 2. Quaerimus, si 
furiosus <^fttnnnTn dedcrit, sn legis 
Aquiliae actio sit P £t Pegasus 
negavit : quae enim in eo culpa sit, 
cum suae mentis non bit P £t boc 



est yerissimnm. . • . Quod si 
impubes id fecerit, Labeo ait, quia 
furti tenetur, teneri et Aquilia 
eum; et hoc puto yerum, si sit 
iam iniuriae capax. 



CONVICTS : ALIEN ENEMIES : INFANTS. 49 

they Toaght be slander. But this would not help a mono- 
xnaniao who should write libellous post-cards to all the 
people who had refused or neglected, say to supply him 
with funds to recover the Crown of England. The amount 
of damages recoTered might be reduced by reason of the 
evident insignificance of such libels; but that would be 
alL Again, a mere child could not be held accountable 
for not using the discretion of a man ; but an infant is 
certainly liable for all wrongs of omission as well as of 
commission in matters where he was, in the common 
phrase, old enough to know better. It is a matter of 
common sense, just as we do jiot expect of a blind man 
the same actions or readiness to act a3 of a seeing man. 

There exist partial exceptions, however, in the case of Partial or 
convicts and alien enemies, and apparent exceptions as to ez^sp^ 
infants and married women. ***^ ' 

A convicted felon whose sentence is in force and unex- Convicts 
pired, and who is not " lawfully at large under any ^emie^ 
licence," cannot sue "for the recovery of any property, 
debt, or damage whatsoever" (6). An alien enemy cannot 
sue in his own right in any English court. Nor is the 
operation of the Statute of Limitations suspended, it 
Sjeems, by the personal disability (c). 

With regard to infants, there were certain cases under Infants : 
the old system of pleading in which there was an option to «>o<»^ 
sue for breach of contract or for a tort. In such a case an indireoilj 
infant could not be made liable for what was in truth a bj suing 

in tort. 

{b) 83 & 34 Viot. o. 23, ss. 8, 30. (e) BeeDe Wahl t. Braune (1856) 

Can he sae for an injonctionP Or 1 H. & N. 178, 25 L. J. Ex. 343 

for a dissolution of marriage or (alien enemy : the law must be the 

judicial separation P same of a conylct). 

P. E 



50 



FEB80KS AFFBCTED BT TOETS. 



breach of contract by framing the action ex delicto. ^' You 
cannot convert a contract into a tort to enable you to Bue 
an infant : Jennings v. RundcUV^ (d). And the principle 
goes to this extent, that no action lies against an infant for 
a fraud whereby he has induced a person to contract with 
him, such as a false statement that he is of full age (e). 



liiinitsof 
ihe rule : 
indepon* 
deat 
wrongs. 



But where an infant commits a wrong of which a con- 
tract, or the obtaining of something under a contract, is 
the occasion, but only the occasion, he is liable. In 
Burnardy. Haggis (/), the defendant in the County Court, 
an infant undergraduate, hired a horse for riding on the 
express condition that it was not to be used for jumping ; 
he went out with a friend who rode this horse by his de- 
sire, and, making a cut across country, they jumped divers 
hedges and ditches, and the horse staked itself on a fence 
and was fatally injured. Having thus cfiused the horse to 
be used in a manner wholly unauthorized by its owner, 
the defendant was held to have committed a mere trespass 
or " independent tort " (^), for which he was liable to the 
owner apart from any question of contract, just as if he 
had mounted and ridden the horse without hiring or leave. 



Infant Also it has been established by various decisions in the 

take c^^ Court of Chancery that ^' an infant cannot take advantage 
vantage of ^f j^jg q^^ fraud : " that is, he may be compelled to specific 

fraud. 



{d) 8 T. B. 335, 4 B. B. 680, 
thuB cited by Parke B., Fairhunt 
▼. Liverpool Adelphi Loan Aisocia* 
tion (1854) 9 £x. 422, 23 L. J. Ex. 
163. 

{e) Johmon y. Fie, 1 Sid. 258, fto. 
See the report foUy cited hy Knight 
Brace, V.-G. (1847) in Stikeman y. 
DawMHf 1 De G-. & Sm. at p. 113 ; 
cp. the remarks at p. 110. 



(/) 14 a B. N. S. 45, 82 L. J. 
0. P. 189 (1863). 

(^) See per Willes J. If the 
bailment had beea at will, the de- 
fendant's act would haye wholly 
determined the bailment, and under 
the old forms of pleading he would 
haye been liable at the owner's 
election in case or in trespass vi et 
mrmit. See litt. s. 71. 



MARRTKD WOMEN. SI 

restitutiony where that is possible, of anytlmig he has ob- 
tained by deoeit, nor oan he hold other persons liable for 
acts done on the faith of his false statement, which would 
have been duly done if the statement had been true (A). 
Thus, where an infant had obtained a lease of a furnished 
house by representing himself as a responsible person and 
of full age, the lease was declared void, and the lessor to 
be entitled to delivery of possession, and to an injunction 
to restrain the lessee from dealing with the furniture and 
effects, but not to damages for use and occupation (A). 



As to married women, a married woman was by the Married 
common law incapable of binding herself by contract, and the oom- 
theref ore, like an infant, she could not be made liable as ^^^ ^^" 
for a wrong in an action for deceit or the like, when this 
would have in substance amounted to making her liable on 
a contract (t). In other cases of wrong she was not under 
any disability, nor had she any immunity ; but she had to 
sue and be sued jointly with her husband, inasmuch as 
her property was the husband's ; and the husband got the 
benefit of a favourable judgment and was Kable to the 
consequences of an adverse one. 

Since the Married Women's Property Act, 1882, a Married 

.., • jiu i 1 • "Women's 

mamed woman can acquire and hold separate property m Property 
her own name, and sue and be sued without joining her '^^* ^^^^' 
husband. If she is sued alone, damages and costs recovered 
against her are payable out of her separate property (Ar). 

(A) Zemprih-0 ▼. J^tge (1879) 12 23 L. J. Ex. 163. 

Gh. D. 676 ; and see other oases in {k) 45 & 46 Vict. c. 75, s. 1. 

the -writer's <* Principles of Con- The right of action given by the 

tract," p. 74, 6th ed. statute applies to a cause of action 

(t) Fairhurtt y. Liverpool Adelphi which arose before it came into 

Lorn JModatwn (1854) 9 Ex. 422, operation: WeldonT. ^luAnc^ (1884) 

b2 



52 



PEBSOKS AFFECTED BT TORTS. 



If a husband and wife sue jointly for personal injuries to 
the wife, the damages recovered are the wife's separate 
property (/). She may sue her own husband, if neoessaryy 
" for the protection and security of her own separate pro- 
perty "; but otherwise actions for a tort between husband 
and wife cannot be entertained (m). That is, a wife may 
sue her husband in an action which under the old forms of 
pleading would have been trover for the recovery of her 
goods, or for a trespass or nuisance to land held by her as 
her separate property ; but she may not sue him in a civil 
action for a personal wrong, such as assault, libel, or injury 
by negligence. Divorce does not enable the divorced wife 
to sue her husband for a personal tort committed during 
the coverture (n) . There is not anything in the Act to pre- 
vent a husband and wife from suing or being sued jointly 
according to the old practice ; the husband is not relieved 
from liability for wrongs committed by the wife during 
coverture, and may still be joined as a defendant at need. 
If it were not so, a married woman having no separate 
property might commit wrongs with impunity (o). If 
husband and wife are now jointly sued for the wife's 
wrong, and execution issues against the husband's property, 
a question may possibly be raised whether the husband is 



13 Q. B. Diy. 784, 63 L. J. Q. 6. 
628. In Bucli case the Statute of 
limitatioii nms not from the com- 
mitting of the wrong, but from the 
commencement of the Act : Loice y. 
Fox (1886) 16 Q. B. Div. 667, 64 
L. J. Q. B. 661. 

(/) Beaaley t. Roneyy '91, 1 Q. B. 
609, 60 L. J. Q. B. 408. 

(m) Sect. 12. A trespaaser on 
the wife's separate property can* 
not justify nnder the husband's 
authority. Whether the husband 



himself could justify entering a 
house, his wife's separate property, 
acquired as such before or since the 
Act, in which she is liying apart, 
quaere: JFeldon y. Jk Bathe (1884) 
14 Q. B. Diy. 339, 64 L. J. Q. B. 
113. 

(it) FhilUpt y. Barnei (1876) 1 
Q. B. Div. 436, 46 L. J. Q. B. 277. 

(o) Seroka y. Kattenlmrg (1886) 
17 Q. B. Diy. 177, 65 L. J. Q. B. 
376. 



CORPORATIONS. 



53 



enlitied to indemnity from the wife's separate property, if 
in fact she has any (p). 

There is some authority for the doctrine that by the Common 
common law both infants (q) and married women (r) are i^inty of 
liable only for " actual torts " such as trespass, which were j^^^*" 
formerly laid in pleading as contra pacem^ and are not in married 

, • • women 

any case liable for torts in the nature of deceit, or, m the limited, 
old phrase, in actions which " sound in deceit." But this torome"*^ 
does not seem acceptable on principle. wn JS^^ 

As to corporations, it is eyident that personal injuries. Corpora- 
in the sense of bodily harm or offence, cannot be inflicted 
upon them. Neither can a corporation be injured in 
respect of merely personal reputation. It can sue for a 
libel affecting property, but not for a libel purporting to 
charge the corporation as a whole with corruption, for 
example. The individual officers or members of the 
corporation whose action is reflected on are the only 
proper plaintiffs in such a case («). It would seem at 
first sight, and it was long supposed, that a corporation 
also cannot be liable for personal wrongs {t). But this is 



(p) Sect. 13, which expressly 
provides for ante-nuptial liabilities, 
is rather against the existence of 
snoh a right. 

{q) Johnson y. IHe^ p. 50, supra 
(a diotmn wider than the decision). 

(r) Wriffhi y. Zsonard (1861) 11 
C. B. N. S. 268, 30 L. J. C. P. 
365, hy Erie C. J. and Bjles J., 
against Willes J. and Williams J. 
The judgment of Willes J. seems 
to me conclusiye. 

(«) Mayor of Manchester y. Jni' 
liams, '91, 1 Q. B. 94, 60 L. J. 
Q. B. 23. 



(0 The difficulty felt in earlier 
times was one purely of process; 
not that a corporation was meta- 
physicaUy incapable of doing 
wrong, but that it was not physi* 
cally amenable to capias or exigent : 
22 Ass. 100, pi. 67, and other autho- 
rities collected by Serjeant Manning 
in the notes to Maund y. Monmouth' 
shire Canal Co,^ 4 M. AG. 462. But 
it was decided in the case just 
cited (1842) that trespass, as earlier 
in Tarborough y. Bank of England 
(1812) 16 East 6, 14 B. B. 272, that 
trover, would lie against a corpora- 



54 



PERSONS AFFECTED BY TOETS. 



really part of the larger question of the liability of prin- 
eipalfi and employers for the conduct of persons employed 
by them ; for a corporation can act and become liable only 
through its agents or servants. In that connexion we 
recur to the matter further on. 

The greatest difficulty has been (and by some good 
authorities still is) felt in those kinds of cases where 
^'malice in fact" — ^actual ill-will or evil motive — has to 
be proved. 



Bespon« 
sibLlity of 
public 
Dodies for 
manage- 
ment of 
works, fto. 
nndcr 
their 
control. 



Where bodies of persons, incorporated or not, are in- 
trusted with the mamagement and maintenance of works, 
or the performance of other duties of a public nature, they 
are in their corporate or quaai-oorpoTAte capacity respon- 
sible for the proper conduct of their undertakings no less 
than if they were private owners : and this whether they 
derive any profit from the undertaking or not (fi). 

The same principle has been applied to the management 
of a public harbour by the executive government of a 
British colony (x). The rule is subject, of course, to the 
special statutory provisions as to liability and remedies 
that may exist in any particular case (y). 



tion aggregate. In MassachnBetts 
a corporation lias been held liable 
for the publication of a libel : Foggi 
T. Boston and Lowell B. Co. (1889) 
148 Mass. 513. And see per Lord 
Bramwell, 11 App. Ga. at p. 264. 

{u) Meney Docks Trustees v. Oibbs 
(1864-6) L. B. 1 H. L. 93, 35 L. J. 



Ex. 225 : see the rery full and 
careful opinion of the judg^es de- 
livered by Blaokbum J., L. B. 1 
H. L. pp. 102 sqq.j in which the 
previous authorities are reviewed. 

(;r) Reg. v. JTilliams (appealfrom 
New Zealand) 9 App. Ca. 418. 

(y) L. B. 1 H. L. 107, 110. 



ACrnO PEBSOKALIS, ETC. 65 

2.—I!fect of a Party's Death. 

We liaYe next to cx)nfiider the effect produced on liabilitj* Effect of 
for a wrong by the death of either the person wronged or either 
the wrong-doer. This is one of the least rational parts of 5Sw Vw- 
our law. The common law maxim is actio persofialis *»w/u 
marttur cum persona^ or the nght of action for tort is put eumper^ 
an end to by the death of either party, even if an action 
has been commenced in his lifetime. This maxim ^^ is one 
of some antiquity, but its origin is obscure and post- 
classical " (z). Causes of action on a contract are quite as 
much '^personal" in the technical sense, but, with the 
exception of promises of marriage, and (it seems) injuries 
to the person by negligent performance of a contract, the 
maxim does not apply to these. In cases of tort not 
falling within statutory exceptions, to be presently men- 
tioned, the estate of the person wronged has no claim, and 
that of the wrong-doer is not liable. Where an action on 
a tort is referred to arbitration, and one of the parties dies 
after the hearing but before the making of the award, the 
cause of action is extinguished notwithstanding a clause in 
the order of reference providing for delivery of the award 
to the personal representatives of a party dying before the 
award is made. Such a clause is insensible with regard to 
a cause of action in tort; the agreement for reference 
being directed merely to the mode of trial, and not extend- 
ing to alter the rights of the parties {a). A very similar 
rule existed in Boman law, with the modification that the 
inheritance of a man who had increased his estate by dolus 
was bound to restore the profit so gained, and that in some 
cases heirs might sue but could not be sued (6). Whether 

(x) Bowen and Fry L.JJ., Fin^ the maxim generaUj. 

la^ T. Chimey (1888) 20 Q. B. Diy. (a) Bowker v. JEvana (1885) 15 

[494, 602, 67 L. J. Q. B. 247 : see Q. B. Dir. 666, 54 L. J. Q. B. 421. 

this judgment on the history of {b) I. iy. 12, de perpetnis et 



66 PEB80KS AFFECTED BT TOBTS. 

deriyed from a haatj following of the Boman rale or 
otherwise, the common law knew no suoh variations ; the 
maxim was absolute. At one time it may have been 
justified by the yindictiye and quasi-diiinnal character of 
suits for civil injuries. A process which is still felt to be 
a substitute for private war may seem incapable of being 
continued on behalf of or against a dead man's estate, an 
impersonal abstraction represented no doubt by one or 
more living persons, but by persons who need not be of kin 
to the deceased. Some such feeling seems to be implied in 
the dictum, '^ If one doth a trespass to me, and dieth, the 
action is dead also, because it should be inconvenient to 
recover against one who was not party to the wrong " (c). 
Indeed, the survival of a cause of action was the exception 
in the earliest English law {d), 

A Varbar- But when ouce the notion of vengeance has been put 
^"" ** aside, and that of compensation substituted, the rule actio 
personalia moritur cum persona seems to be without plausible 
ground. First, as to the liability, it is impossible to see 
why a wrong-doer's estate should ever be exempted from 
making satisfaction for his wrongs. It is better that the 
residuary legatee should be to some extent cut short than 
that the person wronged should be deprived of redress. 
The legatee can in any case take only what prior claims 
leave for him, and there would be no hardship in his 
taking subject to all obligations, ex delicto as well as ex 
contractu^ to which his testator was liable. Still less could 
the reversal of the rule be a just cause of complaint in the 

temporalibus aotionibas, 1. An- Engliah maxim is nothing bat a 

other differonoe in fayour of the misreading of jwMa/t«. 

Boman law is that death of a party {e) Newton 0. J. in Year-Book 

after litii contettatio did not abate 19 Hen. YI. 66, pi. 10 (▲.d. 1440- 

the action in any ease. It has been 41). 

conjectured that penanalis in the (<Q 20 Q. B. Diy. 503. 



ACTIO PERSONALIS, ETC. 6f 

oase of intestate suooessioiL Then as to the right : it is 
supposed that personal injuries cause no damage to a 
man's estate, and therefore after his death the wrong-doer 
has nothing to account for. But this is oftentimes not so 
in fact. And, in any oase, why should the law, contrary 
to iU own principles and maxims in other departments, 
presume it, in favour of the wrong-doer, so to be P 
Here one may almost say that omnia praemmuntur pro 
spoliatore. Personal wrongs, it is allowed, may *' operate 
to the temporal injuiy " of the personal estate, but without 
express allegation the Court will not intend it (e), though 
in the case of a wrong not strictly personal it is enough if 
such damage appears by necessary implication (/). The 
burden should rather lie on the wrong-doer to show that 
the estate has not suffered appreciable damage. But it is 
needless to pursue the argxmient of principle against a rule 
which has been made at all tolerable for a civilized country 
only by a series of exceptions (^) ; of which presently. 

The rule has even been pushed to this extent, that the ExteDsion| 
death of a human being cannot be a cause of action in a ^ Mom 1 
civil Court for a person not claiming through or represent- ^- ^»^^<'- 1 
ing the person killed, who in the oase of an injuiy short of 
death would have been entitled to sue. A master can sue 
for injuries done to his servant by a wrongful act or 
neglect, whereby the service of the servant is lost to the 
master. But if the injury causes the servant's death, it is 
held that the master's right to compensation is gone (A). 
We must say it is so held, as the decision has not been 

{e) Chamherhin t. Williamum, 2 {g) Cp. Bentham, Traits de 

M. & S. at p. 414, 15 B. B. at Legislation, yoI. li. pt. 2, c. 10. 
p. 297. (A) O$bom v. Gillett (1878) L. R. 

(/) Twyerou t. Grant (1878) 4 8 Ex. 88, 42 L. J. Ex. 63, diss. 

0. P. Div. 40, 48 L. J. 0. P. 1. BramweU B. 



68 



PEIU90KS AFFECTED BY TOETSt 



OTerruled, or, tliat I know of, judicially questioned. But 
the difleent of Lord Bramwell is enough to throw doubt 
upon it. The previouB authorities are inoonclusiTe, and 
the reasoning of Lord Bramwell's (then Baron Bramwell's) 
judgment is, I submit, unanswerable on principle. At all 
eyents ^* actio personalis moritur cum persona" will not 
serye in this case. Here the person who dies is the servant; 
his own cause of action dies with him, according to the 
maxim, and his executors cannot sue for the benefit of his 
estate (t). But the master's cause of action is altogether 
a different one. He does not represent or claim through 
the servant ; he sues in his own right, for another injuiy, 
on another estimation of damage ; the two actions are 
independent, and recovery in the one action is no bar to 
recovery in the other. Nothing but the want of positive 
authority can be shown against the action being maintain- 
able. And if want of authority were fatal, more than one 
modem addition to the resources of the Common Law 
must have been rejected (k). It is alleged, indeed, that 
" the policy of the law refuses to recognize the interest of 
one person in the death of another " (/) — a reason which 
would make life insurance and leases for lives illegal. 
Another and equally absurd reason sometimes given for 
the rule is that the value of human life is too great to be 
estimated in money : in other words, because the compen- 
sation cannot be adequate there shall be no compensation 



{%) Under Lord Gampbell*B Act 
(infra) thej maj have a right of 
suit for the benefit of certain per- 
sonsi not the estate as such. 

(*) Kg, CoUm V. Wrighty Ex. 
Gh. 8 E. & B. 647, 27 L. J. Q. B. 
215 (agent's implied wairantj of 
authoritj—a dootrine intiodnoed, 
by the way, for the veiy pazpose 



of escaping the iniquitous effect of 
the Tnaxim now in question, bj 
getting a cause of action in con- 
tract which could be maintained 
against executors) ; LumUy y. Oye 
(1853) 2 E. & B. 216, 22 L. J. 
Q. B. 463, which we shaU have to 
consider hereafter. 

(/) L. B. 8 Ex. at p. 90, «ry. 



EXECUTOBS. 59 

at all (m). It is trae that the action by a master for loss 
of service oonsequential on a wrong done to his servant 
belongs to a somewhat archaic head of the law which has 
now become almost anomalous; perhaps it is not too 
much to say that in our own time the Courts have dis* 
oouraged it. This we shall see in its due place. But that 
is no su£Bicient reason for discouraging the action in a 
particular case by straining the application of a rule in 
itself absurd. Osbom v. Oilktt stands in the book, and 
we cannot actually say it is not law ; but one would like 
to see the point reconsidered by the Court of Appeal (n). 

We now proceed to the exceptions. The first amend- £xoep« 
ment was made as long ago as 1330, by the statute g^^uieg^f 
4 Ed. III. c. 7, of which the English version runs thus : Ed. ill. 

Item, whereas in times past executors have not had exeouton 
actions for a trespass done to their testators, as of the ^tto 
goods and chattels of the same testators carried away in **'««P»s8ee' 
their life, and so such trespasses have hitherto remained 
unpunished ; it is enacted that the executors in such cases 
shall have an action against the trespassers to recover 
damages in like manner as they, whose executors they be, 
should have had if they were in life. 

The right was expressly extended to executors of execu- 
tors by 25 Ed. III. st. 5, c. 5, and was construed to extend 
to administrators (o). It was held not to include injuries 
to the person or to the testator's freehold, and it does not 
include personal defamation, but it seems to extend to all 

(m) The Roman lawyers, how- L. Q. R. x. 182. 

evetf seem to haye held a like view. (») Cp. Mr. Horace Smith's re- 

(( Llbenim oorpus nnllam redpit marks on this case (Smith on Neg- 

aestimationem : " J). 9. 3, de his ligenoe, 2nd ed. 256). 

qni efihid., 1, § 6 ; cf. h. t. 7, and (o) See note to Finehon*s case, 9 

D. 9. 1, si qnadrapes, 8. See Go. Rep. 89 a, toI. t. p. 161 in ed. 

Grueber on the Lex Aqnilia, p. 17. 1826. 
As to the law of SooUand, see 



60 PERSONS AFFECTED BY T0ET8. 

other wrongs where special damage to the personal estate 
is shown (p). 

Of Will. Then by 3 & 4 W ill. IV. o. 42 (a.d. 1833) actionable 

IV as to . • . ' ' "•- — .. \ . . . A 

injorieBto injuries to the real estate of any person committed within 
property. ^ calendar months before his death may be sued upon by 
his personal representatives, for the benefit of his personal 
estate, within one year after his death : and a man's estate 
can be made liable, through his personal representatives, 
for wrongs done by him within six calendar months before 
his death '^ to another in respect of his property, real or 
personal." In this latter case the action must be brought 
against the wrong-doer's representatives within six months 
after they have entered on their office. Under this statute 
the executor of a tenant for life has been held liable to the 
remainderman for waste committed during the tenancy {q). 

No ri^ht Nothing in these statutes affects the case of a personal 
for damage ii^jury causudg death, for which according to the maxim 
^^P^^^^ there is no remedy at all. It has been attempted to main- 
sequential tain that damage to the personal estate by reason of a 

on per* 

Bonal personal injury, such as expenses of medical attendance, 
"»J^^* j^jj^ iQgg Qf income through inability to work or attend 

to business, will bring the case within the statute of 
Edward III. But it is held that ^^ where the cause of 
action is in substance an injury to the person," an action 
by personal representatives cannot be admitted on this 
ground : flie original wrong itself, no t o nly its conse- 
quences, must bft an inJTiTv to yrottflrtv M. 

(p) Twycrou t. Grant (1878) 4 (q) JToodhome t. JTalker (1880) 

G. P. Div. 40, 45, 48 L. J. G. P. 1 ; 6 Q. B. Diy. 404, 49 L. J. Q. B. 

Hatehard y. Mige (1887) 18 Q. B. 609. 

D. 771, 66 L. J. Q. B. 397 ; Oakey (r) Pulling t. O. K R. Co. (1882) 

T. Dalton (1887) 36 Gh. D. 700, 66 9 Q. B. D. 110, 51 L. J. Q. B. 453 ; 

L. J. Gh. 823. cp. leggoU v. G, N. E. Co, (1876) 



LORD Campbell's act. 



6l 



Bailway.aooidentSy towards the middle of the present Lord i 
oenturj, brought the hardship of the oomnion law rule into bell's Act: | 
prominenoe. A man who was maimed or reduced to im- gg^ 
beoility by the negligence of a railway oompaay's servants oreateiby 
might recover heavy damages. If he died of his injuries, 
or was killed on the spot, his family might be ruined, but 
there was no remedy. This state of things brought about 
the passing of Lord Campb elFs A ct (9 & 10 Yict. c. 9 3. 
A>D. 1846) , a statute extremely characteristic of English 
legislation (a). Instead of abolishing the barbarous rule 
which was the root of the mischief complained of, it created 
a new and anomalous kind of right and remedy by way of 
exception. It is entitled ^^An Act for compensating the 
Families of Persons killed by Accidents'': it confers a 
right of action on the personal representatives of a person 
whose death has been caused by a wrongful act, neglect, 
or default such that if death had not ensued that person 
might have maintained an action ; but the right conferred 
is not for the benefi t of the personal estate^ but *^for the 
benefit of the wife, husband, parent^ and child (t) of the 



1 Q. B. D. 699, 46 L. J. Q. 6. 667; 
the earlier oaae of Bradthaw t. 
Zaneoihirt and Torkthire B, Co, 
(1876) L. R. 10 0. P. 189, 44 L. J. 
C. P. 148, is doabted, but distin- 
guiahed as beiDg on an action of 
contract. 

{») It appears to haye been sng- 
gested bj the law of Scotland, 
which already gave a remedy : see 
Campbell on Negligence, 20 (2nd 
edit.) ; and Blake t. Midland B. Co. 
(1862) 18 Q. B. 93, 21 L. J. Q. B. 
233 (in argument for plaintiff). 

(Q ** Parent" includes father 
and mother, grandfather and 
grandmother, stepfather and step- 
mother. ** Child ** includes son 



and daughter, grandson and grand- 
daughter, stepson and stepdaugh<* 
ter: sect. 6. It does not include 
illegitimate children : Dickinson v. 
y. B. B. Co. (1863) 2 H. & C. 735, 
33 L. J. Ex. 91. There is no 
reason to doubt that it includes an 
unborn child. See The Oeorge and 
Bichard (1871) L. B. 3 A. & E. 460, 
which, however, is not of judicial 
authority on this poiAt, for a few 
months later {Smith y. Broum (1871) 
L. B. 6 Q. B. 729) the Court of 
Queen's Bench held in prohibition 
that the Court of Admiralty had 
no jurisdiction to entertain claims 
under Lord Campbell's Act; and 
after some doubt this opinion haa 



62 



PERSONS AFFECTED BT TORTS. 



person wbose death shall have been so oaosed.'' The 
action must be commenoed within twelve calendar months 
after the death of the deceased person (s. 3). Damages 
have to be assessed according to the injury resulting to the 
parties for whose benefit the action is brought, and appor- 
tioned between them bj the jury (u) . The nominal plaintiff 
must deliver to the defendant particulars of those parties 
and of the nature of the claim made on their behalf. 

By an amending Act of 1864, 27 & 28 Vict. c. 95, if 
there is no personal representative of the person whose 
death has been caused, or if no action is brought by per- 
sonal representatives within six months, all or any of the 
persons for whose benefit the right of action is given by 
Lord Campbell's Act may sue in their own names (:r). 

GoiiBtrac- The principal Act is inaccurately entitled to begin with 
Lord (for to a lay reader '' accidents " might seem to include 

^^?"Aot. inevitable accidents, and again, " accident " does not 
include wilful wrongs, to which the Act does apply) ; nor 
is this promise much bettered by the performance of its 
enacting part. It is certain that the right of action, or at 
any rate the right to compensation, given by the statute is 
not the same which the person killed would have had if he 
had lived to sue for his injuries. It is no answer to a 
daim under Lord Campbell's Act to show that the deceased 
would not himself have sustained pecuniary loss. '' The 



been confirmed by the Hoiue of 
LordB: Seward v. The Vera Cr%u 
(1884) 10 App. Ca. 69, OTerraling 
The Franeonia (1877) 2 P. B. 163. 

(t<) Where a daim of thia kind 
ia aatisfied by payment to executora 
-without an action being brought, 
the Ck>nrt will apportion the fund, 
In pxooeedinga taken for that pur» 



pose in the Chancery Diyiaion, in 
like manner as a jury could have 
done : Bulmer y. Buhner (1883) 26 
Ch. B. 409. 

(x) Also, by sect. 2, "money 
paid into Court may be paid in 
one Bum, without regard to its 
diTision into aharea" (marginal 
note). 



LOEb Campbell's act. 63 

statute • . • gives to the personal representatiye a cause 
of action beyond that which the deceased would have had 
if he had survived, and based on a different principle" {y). 
But " the statute does not in terms saj on what principle 
the action it gives is to be maintainable, nor on what prin- 
ciple the damages are to be assessed ; and the only way 
to ascertain what it does, is to show what it does not 
mean "(2). It has been decided that some appreciable 
pecuniary loss to the beneficiaries (so we may conveniently 
call the parties for whose benefit the right is created) 
must be shown; they cannot maintain an action for 
nominal damages (a) ; nor recover what is called solatium 
in respect of the bodily hurt and suffering of the deceased, 
or their own affliction (6) ; they must show ^' a reasonable • 
expectation of pecuniary benefit, as of right or otherwise," | 
had the deceased remained alive. But a legal right to f 
receive benefit from him need not be shown (c). Thus, 
the fact that a grown-up son has been in the constant 
habit of making presents of money and other things to his 
parents, or even has occasionally helped them in bad 
times {d)f is a ground of expectation to be taken into ac- 
count in assessing the loss sustained. Funeral and mourn- 
ing expenses, however, not being the loss of any benefit 
that could have been had by the deceased person's continu- 
ing in life, are not admissible {e). 

(y) Erie C. J.y Fym y. Q. i^. Maoq. 762, n. 

J2. Co. (18C3) Ex. Ch. 4 B. & S. at (c) Franklin y. 8. B. JS. Co. 

p. 406. (1868) 3 H. &N. 211. 

(«) Pollock C. B. in Franklin v. (rf) HetheringUm v. N. S. R. Co. 

8. E. H. Co. (1868) 3 H. & N. at (1882), 9 Q. B. B. 160, 61 L. J. 

p. 213. Q. B. 496. 

(a) Duckworth y. Johnson (1869) (e) Dalton y. 8. E. E. Co. (1868) 
4 H. & ir. 653 ; 29 L. J. Ex. 26. 4 0. B. N. 8. 296, 27 L. J. C. P. 

(b) Elakey. Midland E. Co. (1852) 227, dosely ioUowing Franklin y. 
18 Q. B. 93, 21 L. J. Q. B. 233. 8. E. E. Co. 
In Sooiland it is otherwise: I 



64 PEHSONS AFFEOTED BT TORTS. 

Iniereftts The. inteorests conferred by the Aot on the several bene- 
Yivon fioiaries are distinct. It is no answer to a claim on behalf 
difltuiot. q{ gQujQ Qf a man'g ohildren who are left poorer that all 

his children, taken as an undivided class, have got the 
whole of his property (/)• 

The stetu- It ia said that the Aot does not transfer to representa- 

tory oftuse , , , , , 

of action iB tives the right of action which the person killed would 
tution, not ^*^® ^^> " ^^^ gives to the representative a totally new 
^mula- right of action on different principles" (g). Nevertheless 
the cause of action is so far the same that if a person who 
ultimately dies of injuries caused by wrongful act or neg- 
lect has accepted satisfaction for them in his lifetime, an 
action imder Lord Campbell's Act is not afterwards main- 
tainable {h). For the injury sned on must, in the words 
of the Act, be ^' such as would, if death had not ensued, 
have entitled the party injured to maintain an action and 
recover damages in respect thereof " : and this must mean 
that he might immediately before his death have maintained 
an action, which, if he had already recovered or accepted 
compensation, he could not do. 

Soottiflh In Scotland, as we have incidentally seen, the surviving 
ricanlawB. kindred are entitled by the common law to compensation 
in these cases, not only to the extent of actual damage, but 
by way of solatium. In the United States there exist 
almost everywhere statutes generally similar to Lord 
Campbell's Aot; but they differ considerably in details 

(/} ^¥f^ ▼• ^' ^- -S- Co. (1863) pUintifiP, see Grand Trunk JR. of 

4 B. & S. 396, 32 L. J. Q. B. 377. Canada t. Jennwga (1888) 13 App. 

The deoeased had settled real estate Ca. 800, 68 L. J. P. 0. 1 . 

on his eldest son, to whom other (^) 18 Q. B. at p. 110. 

estates also passed as heir-at-law. (A) Read t. O. E. It, Co, (1868) 

As to the measure of damages L. B. 8 Q. B. 655, 37 L. J. Q. B. 

where the deceased has insured his 278. 
own life for the direct benefit of the 



iroUiOWING PROPEETT. 65 

from that Act and from one another (t). The tendency 
seems to be to oonf er on the surviyorSy both in legislation 
and in jadicnal oonstmction, larger rights than in England. 

In one class of cases there is a right to recover against a Burht to 
wrong-doer's estate, notwithstanding the maxim of actio p^p^ty 
personalis, yet not so as to constitute a formal exception. J^iyuien 
When it comes to the point of direct conflict, the maxim or oon- 

- , verted as 

has to prevail. against 

As Lord Mansfield stated the rule, " where property ia a^f " 
acquired which benefits the t^°^"t^r thort bb sfftinn for th^ estate, 
value of the property shall survive againstiJifijoifiGutoi" (k). 
Or, as Bowen L. JT has more fully expressed it, the oases 
under this head are those '* in which property, or the pro- 
ceeds or value of property, belonging to another, have been 
appropriated by the deceased person and added to his own 
estate or moneys.'' In such cases, inasmuch as the action 
brought by the true owner, in whatever form, is in sub^ 
stance to recover property, the action does not die with the 
person, but " the property or the proceeds or value which, 
in the lifetime of the wrong-doer, could have been re- 
covered from him, can be traced after his death to his 
assets" (by suing the personal representatives) ''and re- 
captured by the rightful owner there." But this 
limited to the recovery of spec ific acgiyisitioM ja:. Jthfiir 
value. It d oes not inolude the recovery of damages^ as 
such, for a vnx)ng, though the wrong may have increased 
the wrong-doer's estate in the sense of being useful to him 
pr saving him expense (/). 

(•) Cooley on Torts (Chioago, b. 296. 

1880) 262 tgq. ; Shearman & Red- {k) Eambly y. TroH^ 1 Cowp. 

field on Negligence, ss. 293 9qq. 376. 

In ArVaymMui the doctrine of actio (/) The teohnioal rule was that 

pertonalU, &o. appears to have been exeontors oonld not be sued in 

wholly abrogated by statute: t^. respect of an act of their testator in 

P. F 



66 



PEB80NS AFFECTED B7 TORTS. 



Themle 
limited to 
xeooTory 
of Bpeomo 
property 
or its 
Talue: 

\Thimiu ▼. 



If Am WTongf ollj gets and oairieB away ooal from a mine 
under B.'b land, and B. saes for the value of the ooal 
and damages, and inquiries are directed, pending which 
A. dies, B. is entitled as against A.'s estate to the value of 
the coal wrongfully taken, but not to damages for the use 
of the passages through which the coal was carried out, nor 
for the injury to the mines or the surface of the ground 
[consequent on A.'s workings (A). 

Again, A., a manufacturer, fouls a stream with refuse to 
the damage of B., a lower riparian owner ; B. sues A., and 
pending the action, and more than six months after its 
commencement (t), A. dies. B. has no cause of action 
against A.'s representatives, for there has been no specific 
benefit to A.'s estate, only a wrong for which B. might in 
A'.s lifetime have recovered unliquidated damages (k). 

The like law holds of a director of a company who has 
committed himself to false representations in the pro- 
spectus, whereby persons have been induced to take shares, 
and have acquired a right of suit against the issuers. If 
he dies before or pending such a suit, his estate is not 

liable (/). Tn aliort^ this rig^ f Ay^inst flift ft^^y^ntftTg ^^ 

administrators of a wronp-doer can be maintained_onlj[ if 
there is *^8ome beneficial prop erty oi^ value c apable of 
being measured, followed, a nd re c overed " (w). For the 
rest, the dicta of the late Bir George Jessel and of the 
Lords Justices are such as to make it evident that the 
maxim which they felt bound to enforce was far from 
commanding their approval. 



bis lifetime in any form of action 
in wliioh the plea was not guilty : 
Eamhly t. Trott, 1 Oowp. 376. 

(A) Phillipt T. Honrfray (1883) 24 
Ch. Div. 439, 454, 62 L. J. Cli. 833. 
The authorities are fully examined 
in the judgment of Bowen and 
Cotton L. JJ. As to allowing in- 
terest in Bach oases, see FhiUip$ y. 



Hon^ray, »92, 1 Ch. 466, 61 L. J. 
Ch. 210, C. A. 

(0 3 & 4 WiU. rV. 0. 42, p. 6Q, 
above. 

(k) Kirk y. Todd (1882) 21 Ch. 
Diy. 484, 62 L. J. Ch. 224. 

(0 Peek y. Gumey (1873) L. B. 
6 H. L. at p. 392. 

(m) 24 Ok, D. at p. 468. 



liability"fob others^ acts. 67 



3. Liability for the Torts of Agents and Servants, 

Whoever commits a wroni? is ImMa for it TiiTnaplf It is Command 

no excuse thai he was acting, as an agent or servant, on dpaldoes 
behalf and for the benefit^of another (n). But that other ^^J^"^ 
may well be also liable : and in many cases a man is held wrong, 
answerable for wrongs not coiQmitted by himself. The 
rules of general application in this kind are those con- 
cerning the liability of a principal for his agent, and of a 
master for his servant. Under certain conditions respon- 
sibility goes farther, and a man may have to answer for 
wrongs which, as regards the immediate cause of the 
damage, are not those of either his agents or his servants. 
Thus we have cases where a man is subject to a positive Gasefl of 
duty, and is held liable for failure to perform it. Here, podtiYe 
the absolute character of the duty being once established, ^|^. 
the question is not by whose hand an imsuccessful attempt an»i«hed: 
was made, whether that of the party himself, of his servant, 
or of an "independent contractor" (o), but whether the 
duty has been adequately performed or not. If it has, 
there is nothing more to be considered, and liability, if any, 
must be sought in some other quarter (p). If not, the 
non-performance in itself, not the causes or conditions of 
non-performance, is the ground of liability. Special duties 
created by statute, as conditions attached to the grant of 
exceptional rights or otherwise, afford the chief examples 
of this kind. Here the liability attaches, irrespective 
of any question of agency or personal negligence, if and 



(ft) OiiUm Y. Thomson^ 9 Trusteet or any other wrong. 
and Kwrty 4 Maoq. 424, 432. <'Eor (o) The distinction will be ex- 

the oontraot of agency or service plained below, 
cannot impose any obligation on (^) SeeJET/amtT. WehtUt {y^^%) 

the agent or servant to commit or Ex. Ch. L. B. 4 Q. B. 138, 3S 

assist in the oommitUng of fraod," L. J. Q. B. 21. 

f2 



68 P£B80RS AFFECTED BT TOBTS. 

when the oonditions imposed bj the legiBlatore are not 
satisfied (q). 

also dnticfl There oconr likewise, though as an exception, duties of 
^ wir^ ^^ ^^d imposed by the common law. Such are the duties 
^^^^* of common carriers, of owners of dangerous animals or other 
things involving, by their nature or position, special risk of 
harm to their neighbours ; and such, to a limited extent, 
is the duty of occupiers of fixed property to have it in 
reasonably safe condition and repair, so far as that end 
can be assured by the due care on the part not only of 
themselves and their servants, but of all concerned. 

The degrees of responsibility may be thus arranged, 
beginning with the mildest : 

(i) For oneself and specifically authorized agents (this 

holds always), 
(ii) For servants or agents generally (limited to course 

of employment), 
(iii) For both servants and independent contractors 

(duties as to safe repair, &c.). 
(iv) For everything but vis major (exceptional: some 
oases of special risk, and anomalously, certain 
public occupations). 

Modes of Apart from the oases of exceptional duty where the 
f (Srwi^ff- responsibility is in the nature of insurance or warranty, a 
^ adB, man may be liable for another's wrong — 
others. (1) As having authorized or ratified that particular 

wrong: 

(2) As standing to the otiier person in a relation making 
him answerable for wrongs committed by that person in 
virtue of their relation, though not specifically authorized. 
The former head presents little or no difficulty. The 

{q) See Gray y. JPUUen (1864) Ex. Ch. 6 B. & S. 970, 34 L. J. Q. B. 266. 



BiASTEE'S RESPONSIBILITY. CO 

latter Includes oonfiiderable difficulties of principle, and is 
often complicated with troublesome questions of fact. 

It scarce needs authority to show that a man is liable Command 

A t in 

for wrongful acts which have been done according to his ^uo" 
express command or request, or which, having been done 
on his account and for his benefit, he has adopted as his 
own. " A trespasser may be not only he who does the act, 
but who commands or procures it to be done . . . who aids 
or assists in it ... or who assents afterwards " (r). This 
is not the less so because the person employed to do an 
unlawful act may be employed as an " independent con- 
tractor," so that, supposing it lawful, the employer would 
not be liable for his negligence about doing it. A gas 
company employed a firm of contractors to break open a 
public street, having therefor no lawful authority or ex- 
cuse; the thing contracted to be done being in itself a 
public nuisance, the gas company was held liable for 
injury caused to a foot-passenger by falling over some of 
the earth and stones excavated and heaped up by the con- 
tractors (s). A point of importance to be noted in this 
connexion is that only such acts bind a principal by sub- 
sequent ratification as were done at the time on the prin- 
cipal's behalf. What is done by the immediate actor on 
his own account cannot be effectually adopted by another ; 
neither can an act done in the name and on behalf of 
Peter be ratified either for gain or for loss by John. 
*^ Eatum quis habere non potest, quod ipsius nomine non 
est gestum" (t). 



(r) De Grey C. J. in Barker v. Q. B. 42. 

Braham (1773) 2 W. Bl. 866, (0 Wilson ▼. Tumman (1843) 6 

Bigelow, L. G. 235. M. & G. 236 ; and Serjeant Man- 

(«) EUia Y. Sheffield Oat Coneumert ning'e note, t^. 239. 
Co. (1853) 2 E. & B. 767, 23 L. J. 



70 



PEB60NS AFFECTED BT TOBTS. 



Haster 

and 

Berrant. 



Beason 
of the 
master's 
liabilitj. 



The more general rule governing the other and more 
difficult branch of the subject was expressed by Willes J. 
in a judgment which may now be regarded as a classical 
authority. '* The master is answerable for every such 
wrong of the servant or agent as is committed in the 
course of the service and for the master's benefit, though no 
[express command or privity of the master be proved" (t/). 

No reason for the rule, at any rate no satisfying one, is 
commonly given in our books. Its importance belongs 
altogether to the modem law, and it does not seem to be 
illustrated by any early authority (;r). Blackstone (i. 417) 
is short in his statement, and has no other reason to give 
than the fiction of an '^ implied command." It is cur- 
rently said, Respondeat superior; which is a dogmatic 
statement, not an explanation. It is also said. Qui facit 
per alium facit per se; but this is in terms applicable only 
to authorized acts, not to acts that, although done by the 
agent or servant '^ in the course of the service," are speci- 
fically unauthorized or even forbidden. Again, it is said 
that a master ought to be carefid in choosing fit servants ; 
but if this were the reason, a master could discharge him- 
self by showing that the servant for whose wrong he is 
sued was chosen by him with due care, and was in fact 
generally well conducted and competent: which is cer- 
tainly not the law. 

A better account was given by Ohief Justice Shaw of 
Massachusetts. '^This rule," he said, *'is obviously 
founded on the great principle of social duty, that every 



(m) Barwieh y. Englith Joint Stock 
Bank (1867) Ex. Gh. L. R. 2 Ex. 
269, 265, 36 L. J. Ex. 147. The 
point of the decision is that fraud 
is herein on the same footing as 
other wrongs: of which in due 



conrse. 

(x) Joseph Brown Q.G. in evi- 
dence before Select Committee on 
Employers* Liability, 1876, p. 88 ; 
Brett L. J., 1877, p. lU. 



MASTEB AND SEBYAKT. 



71 



man in the management of his own affairs, whether by 
himself or by his agents or servants, shall so oonduot 
them as not to injure another; and if he does not, and 
another thereby sustains damage, he shall answer for 
it" (y). This is, indeed, somewhat too widely expressed, 
for it does not in terms limit the responsibility to cases 
where at least negligence is proved. But no reader is 
likely to suppose that, as a general rule, either the servant 
or the master can be liable where there is no default at 
all. And the true principle is otherwise clearly enounced. 
I am answerable for the wrongs of my servant or agent, | 
not because he is authorized by me or personally repre- 
sents me, but because he is about my affairs, and I am 
bound to see that my affairs are conducted with due 
regard to the safety of others. 

Some time later the rule was put by Lord Cranworth 
in a not dissimilar form: the master '4s considered as\ 
bound to guarantee third persons against all hurt arising 
from the carelessness of himself or of those actiug imder 
his orders in the course of his business " (s). 

The statement of Willes J. that the master "has put 
the agent in his place to do that class of acts '' is also to 
be noted and remembered as a guide in many of the 
questions that arise. A just view seems to be taken, 
though artificially and obscurely expressed, in one of the 
earliest reported cases on this branch of the law: "It 



(y) Farwell v. Botion and Wot' 
ctiier Bailroad Corporation (1842) 4 
Met. 49, and Bigelow L. C. 688. 
The judgment is also reprinted in 
8 Maoq. 316. So, too, M. Sainc- 
telette, a recent Continental writer 
on the subject, weU says: "La 
responsabilit^ du fait d'autrui n'est 
pas nne fiction inyent^ par la loi 



positive. G'est nne exigence de 
Tordre social: '' De la Reeponsa- 
bilit6 et de la (^arantie, p. 124. 
Paley (Mor. PhiL bk, 3, c. 11) found 
it difficult to refer the rule to any 
principle of natural justice. 

{z) Barton' t HiU Coal C6, v. B$id 
(1868) 3 Ilaoq. 266, 283. 



7^ PEBSONS AFFECTED BY TORTS. 

sliall be intended that the servant had authority from his 
master, it being for his master's benefit" (a). 

Qneetioiis The rule, then (on whatever reason founded), being that 
ridmd^ a master is liable for the acts, neglects, and defaults of 
herein. ]^ servants in the course of the service, we have to define 
further — 

1. Who is a servant. 

2. What acts are deemed to be in the course of service. 

3. How the rule is affected when the person injured is 
himself a servant of the same master. 

Who is a 1. As to the first point, it is quite possible to do work 
^^^^. for a man, in the popular sense, and even to be his agent 
\nhty goes for some purposcs, without beinir his servant. The relation 

with order t ir / . i <■ 

and con- i of master and servant exists only between persons of whom* 
the one has the order and control of the work done by the 
other. A master is one who not only prescribes to the 
workman the end of his work, but directs, or at any 
^ moment may direct the means also, or, as it has been put, 
' *^ retains the power of controlling the yrork" (b) ; and he 
who does work on those terms is in law a servant for 
whose acts, neglects, and defaults, to the extent to be 
specified, the master is liable. An independent contractor 
is one who undertakes to produce a given result, but so 
' that in the actual execution of the work he is not under 
i the order or control of the person for whom he does it, 
1 and may use his own discretion in things not specified 
' beforehand. For the acts or omissions of such a one 
about the performance of his undertaking his employer 
is not liable to strangers, no more than the buyer of goods 

(a) TuhervilU y. Stampe (end of (b) Crompton J., Sailer t. Sen* 

17th centuiy) 1 Ld. Bajm. 264. lock (1866) 4 £. & B. 670, 578, 24 

L. J. Q. B. 138, 141. 



MASTEB AND SEBVAKT, 



73 



is liable to a person wlio may be injured by the careless 
handling of th^n by the seller or his men in the oonrse 
of delivery. If the oontraot, for example, is to build a 
wall, and the builder '' has a right to say to the employer, 
^ I will agree to do it, but I shall do it after my own 
fashion ; I shall begin the wall at this end, and not at 
the other ; ' there the relation of master and servant does 
not exist, and the employer is not liable" {c). "In 
ascertaining who is liable for the act of a wrong-doer, you 
must look to the wrong-doer himself or to the first person 
in the ascending line who is the employer and has control 
over the work. You cannot go further back and make the 
employer of that person liable " (rf). He who controls the 
work is answerable for the worT ^^i^flPi th^ rftmnfi^r. 



plover who does not control it is n ot answerable. This 
distinction is thoroughly settled in our law ; the difficulties 
that may arise in applying it are difficulties of ascertaining 
the &cts {e). It may be a nice question whether a man 
has let out the whole of a given work to an "independent 
contractor," or reserved so much power of control as to 
leave bi'm answerable for what is done (/). 



(e) Br&mwell L. J., Emp. L. 
1877, p. 68. An extra- jadidal 
statementi but made on an occasion 
of importance by a great master of 
the common law. 

((i) Willes J., Mttrray v. Cwrri$ 
(1870) L. R. 6 C. P. 24, 27, 40 
L. J. 0. P. 26. 

{e) One comparatiyely early casej 
Buth Y. Stemman, 1 B. & P. 404, 
disregardfl the role ; but that case 
has been repeatedly commented on 
■with disapproval (see Beedie y. X. 
^ N, yr. B. Co. (1849), 4 Ex. 
244, 20 L. J. Ex. 65), and is 
not now law. See the modem au- 



thorities well reviewed in Millard 
v. Biehardton (Sup. Ck>urt, Mass. 
1856) 3 Gray 349^ and in Bigelow 
L. C. Exactly the same distmo- 
tion appears to be taken under the 
Code Kai>ol6on in fixing the limits 
within which the very wide lan- 
guage of Art. 1384 is to be applied : 
Sainotelette, op, eit, 127. 

{/) Fendleburyy.Greenhalffh (1876) 
1 Q. B. DiV. 36, 46 L. J. Q. B. 3, 
differing from the view of the same 
facts taken by the Court of Queen's 
Benokm Taylor Y, Chreenhalgh (1874) 
L. B. 9 Q. B. 487, 43 L. J. Q. B. 
168. 



74 



PEB80NS AFFECTED BT TORTS. 



Spedfio It xniuat be remembered that the remoter employer, if at 

^^^' any point lie does interfere find aseume epecifio control, 
rontrol. renders himself answerable, not as master, but as principal. 
He makes himself ^'dominus pro tempore." Thus the 
hirer of a carriage, driven by a coachman who is not the 
hirer's senrant but the letter's, is not, generally speaking, 
liable for harm done by the driver's negligence (^). But 
if he orders, or by words or conduct at the time sanctions, 
a specific act of rash or careless driving, he may well be 
liable (A). Bather slight evidence of personal interference 
has been allowed as sufficient in this class of cases {{). 

Tempo- One material result of this principle is that a person who 

fOT^r*""' ^® habitually the servant of A. may become, for a certain 
time and for the purpose of certain work, the servant of B. ; 
and this although the hand to pay him is still A.'s. The 
owner of a vessel employs a stevedore to unload the cargo. 
The stevedore employs his own labourers; among other 
men, some of the ship's crew work for him by arrangement 
with the master, being like the others paid by the stevedore 
and under his orders. In the work of unloading these 
men are the servants of the stevedore, not of the owner (Ar). 



semce. 



{ff) Etoii if the driver was selected 
by himself : Quarman y. Burnett 
(1840) 6 M. & W. 499. So where a 
vessel is hired with its crew : Daly ell 
V. Tyrer (1868) 8 E. B. & E. 899, 
28 L. J. Q. B. 62. So where a con- 
tractor finds horses and drivers to 
draw watering-carts for a mnnici- 
pal corporation, the driver of such 
a cart is not the servant of the 
corporation : JonetT. Corporation of 
Liverpool (1886) 14 Q. B. D. 890, 
64 L. J. Q. B. 346 ; cp. Little v. 
Saekett (1886) 116 U.S. at pp. 
371-8, 377. 

(A) McLauffhlin v. Pryor (1842) 
4 H. fr G. 48. 



(•) lb, ; BurpeuY, Gray (1846) 1 
C. B. 678, 14 L. J. C. P. 184. It 
is dl£Bciilt in either case to see proof 
of more than adoption or acquies- 
cence. Cp. Jonet V. Corporation of 
Liverpool (1886) 14 Q. B. B. at 
pp. 893-4, 64 L. J. Q. B. 346. 

{k) Murray v. Currie (1870) L. R. 
6 C. P. 24, 40 L. J. C. P. 26. In 
this case the man was actually 
paid by the owner's agent and his 
wages deducted in account with 
the stevedore, which of course 
makes no difference in principle. 
Cp. Wild V. Wayyood, '92, I Q. B. 
783, 61 L. J. Q. B. 391, C. A. 



MASTEB AND SERVANT. 75 

There is no " oommon employment '' between the steve- 
dore's men and the seamen on board (/). 

Owners of a oolliery, after partly sinking a shaft, agree 
with a oontractor to finish the work for them, on the terms, 
among others, that engine power and engineers to work the 
engine are to be provided by the owners. The engine that 
has been used in excavating the shaft is handed over 
aooordingly to the contractor ; the same engineer remains 
in charge of it, and is stiU paid by the owners, but is imder 
the orders of the contractor. During the continuance of 
the work on these terms the engineer is the servant not of 
the colliery owners but of the contractor (m). 

But where iron-founders execute specific work about 
the structure of a new building imder a contract with the 
architect, and without any contract with the builder, their 
workmen do not become servants of the builder (n). 



It is proper to add that the '^ power of controlling the 
work" which is the legal criterion of the relation of a 
master to a servant does not necessarily mean a present 
and physical ability. Shipowners are answerable for the 
acts of the master, though done under circumstances in 
which it is impossible to communicate with the owners (o). 
It is enough that the servant is bound to obey the master's 
directions if and when communicated to him. The legal 
power of control is to actual supervision what in the 
doctrine of possession the intent to possess is to physical 
detention. But this much is needful: therefore a com- 



(/) Cammm y. Nytirom (J. 0. G. P. 283. See also Donovan y. 

from N. Z.), '93, A. 0. 808, 62 L. JAmg, »93, 1 Q. B. 629, 4 B. 317, 

J. P. G. 86, 1 B. 362 ; op. Union 63 L. J. Q. B. 26, G. A. 
Steamship Co, ▼. Claridge, '94, A. 0. (n) Johntony, Lindoay, '91, A. G. 

186, 6 B. June, 89. 371, 66 L. T. 97. 

(m) Hourko ▼. WhiU Mou Colliery (o) See Maude and Pollock, Her- 

Co. (1877) 2 G. P. BW. 206, 46 L. J. ohant Shipping, i. 168, 4th ed. 



"Power of 
control" 
ling the 
work*' ex- 
plained. 



76 PERSONS AFFECTED BY TORTS. 

pulfiory pilot, who is in charge of the veesel independently 
of the owner's will, and, so far from being bound to obey 
the owner's or master's orders, supersedes the master for 
the time being, is not the owner's servant, and the statutory 
exemption of the owner from liability for such a pilot's acts 
is but in affirmance of the common law {p). 

What iBin 2. Next we have to see what is meant by the course of 
^^]^y^ service or employment. The injury in respect of which a 
ment. master becomes subject to this kind of vicarious liability 
may be caused in the following ways : — 

(a) It may be the natural consequence of something 

being done by a servant with ordinary care in 
execution of the master's specific orders. 

(b) It may be due to the servant's want of care in 

carrying on the work or business in which he is 
employed. This is the commonest case. 

(c) The servant's wrong may consist in excess or mis- 

taken execution of a lawful authority. 

(d) Or it may even be a wilful wrong, such as assault, 

provided the act is done on the master's behalf 
and with the intention of serving his purposes. 
Let us take these heads in order. 

Execution (a) Here the servant is the master's agent in a proper 

ordm! ° fiense, and the master is liable for that which he has truly, 

not by the fiction of a legal maxim, commanded to be 

done. He is also liable for the natural consequences of 

his orders, even though he wished to avoid them, and 

(p) Kerohant SUpping Act, 1854, semUe that of master and senrant 

8. 888 ; The EalUy (1868) L. B. 2 for the pnrpoae of creating a duty 

P. G. at p. 201. And see Marsden to the public : King y. London Im' 

on Collisions at Sea, 8rd ed. ch. 5. proved Cab Co. (1889) 23 Q. B. Div. 

On the other hand there may be 281 ; Keen ▼. Eenry^ '94, 1 Q. B. 

a statutory relation which does re- 292, 9 R. Feb. 164, C. A. 



OOUBSE OP EMPLOYMENT. 77 

desired his seirant to avoid them. Thus, in Oregory y. 
Piper {q)y a right of way was disputed between adjacent 
oooupierSy and the one who resisted the claim ordered a 
labourer to lay down rubbish to obstruct the way, but so 
as not to touch the other's wall. The labourer executed 
the orders as nearly as he could, and laid the rubbish some 
distance from the wall, but it soon '' shingled down " and 
ran against the wall, and in fact could not by any ordinary 
care have been prevented from doing so. For this the 
employer was held to answer as for a trespass which he 
had authorized. This is a matter of general principle, not 
of any special kind of liability. No man can authorize a 
thing and at the same time affect to disavow its natural 
consequences ; no more than he can disclaim responsibility 
for the natural consequences of what he does himself. 

(b) Then oomes the case of the servant's negligence in Kegrli- 
the performance of his duty, or rather while he is about condnct of 
his master's business. What constitutes negligence does SIJS!^ 
not just now concern us ; but it must be established that 
the servant is a wrong-doer, and liable to the plaintiff, 
before any question of the master's liability can be enter- 
tained. Assuming this to be made out, the question may 
occur whether the servant was in truth on his master's 
business at the time, or engaged on some pursuit of his 
own. In the latter case the master is not liable. '' If the 
servant, instead of doing that which he is employed to do, 
does something which he is not employed to do at all, the 
master cannot be said to do it by his servant, and therefore 
is not responsible for the negligence of his servant in doing 
it " (r). For example : " If a servant driving a carriage, 
in order to effect some purpose of his own, wantonly strike 

(q) 9 B. & 0. 691 (1829). welkr (1853) 13 C. B. 237» 22 L. J. 

(r) Maule J., MUehsU v. CrM- 0. P. 100. 



78 PEBSONS AFFECTED BT T0BT8. 

the horses of another person, ... the master vnil not be 
liable. But if, in order to perform his master's orders, he 
strikes but injudiciouslj, and in order to extricate himself 
itom a difficulty, that will be negligent and oareless 
oonduot, for whioh the master will be liable, being an act 
done in pursuance of the servant's employment" («). 

B^artnre Whether the servant is really bent on his master's affairs 
lion from ^r not is a question of fact, but a question which may be 
J^2^. troublesome. Distinctions are suggested by some of the 
reported cases which are almost too fine to be acceptable. 
The principle, however, is intelligible and rational. Not 
eveiy deviation of the servant from the strict execution of 
duty, nor eveiy disregard of particular instructions, will 
be such an interruption of the course of employment as to 
determine or suspend the master's responsibility. But 
where there is not merely deviation, but a total departure 
from the course of the master's business, so that the 
servant may be said to be "on a frolic of his own" (^), 
the master is no longer answerable for the servant's con« 
duct. Two modem oases of the same class and period, 
one on either side of the line, will illustrate this dis- 
tinction. 

Whatman In Whatman v. Pearson (w), a carter who was employed 
* by a contractor, having the allowance of an hour's time for 
dinner in his day's work, but also having orders not to 
leave his horse and cart, or the place where he was 
employed, happened to live hard by. Contrary to his 
instructions, he went home to dinner, and left the horse 
and cart unattended at his door; the horse ran away and 

(#) Orqft Y. Alison (1821) 4 B. ft oaae, but often cited with approyal ; 

A. 690. Bee Bum$ y. FouUam (1873) L. R. 8 

(t) Parke B., Joa y. Moriton G. P. at p. 667» 42 L. J. 0. P. 802. 
(1834) 6 0. ft P. 503 : a nisi ptins (m) L. B. 8 C. P. 422 (1868). 



OOUBSE OF EMPLOTMENT. 



79 



did damage to the plaintiff's railings. A juij was held 
warranted in finding that the carman was throughout in 
the course of Ids employment as the contractor's serrant 
^* acting within the general scope of his authority to con-* 
duct the horse and cart during the day " (z). 

In Storey y. Ashton (y), a carman was returning to his Storey r, 
employer's ofiGlce with returned empties. A clerk of the 
same employer's who was with him induced him, when he 
was near home, to turn off in another direction to call at 
a house and pick up something for the clerk. While the 
carman was driving in this direction he ran oyer the 
plaintiff. The Court held that if the carman ^^ had been 
merely going a roundabout way home, the master would 
haye been liable ; but he had started on an entirely new 
journey on his own or his fellow-servant's account, and 
could not in any way be said to be carrying out his 
master's employment" (2). More lately it has been held 
that if the servant begins using his master's property for 
purposes of his own, the fact that by way of afterthought 
he does something for his master's purposes also is not 
necessarily such a '' re-entering upon his ordinary duties" 
as to make the master answerable for him. A journey 
undertaken on the servant's own account " cannot by the 
mere fact of the roan making a pretence of duty by 
stopping on his way be converted into a journey made in 
the course of his employment " (a). 



{x) Byles J. at p. 425. 

{si) (1869) L. B. 4 Q. B. 476, 38 
L. J. Q. B. 223. Mitehellr. Orau" 
weUer, cited on p. 77, was a very 
aiimlar case. 

(2) Loflh J. at p. 480. It was 
" an entirely new and independent 
jonmey, which had nothing at all 
to do with hia employment:" 



Cookbum 0. J. "Erery step he 
dzove was away itom his duty : ** 
Hellor J., ibid. But it oonld have 
made no difleienoe if the accident 
had happened as he was coming 
hack. See the next case. 

(0) Rayner y. MiteheU (1877) 2 
0. P. D. 367. 



80 PEB80NS AFFECriSD BT TORTS. 

Wiiiiami The f olloMing is a carious example. A carpenter was 
employed bj A. with B.'s permissioii to work for him in a 
fihed belonging to B. This carpenter set fire to the shed 
in lighting his pipe with a shaving. His act, thoogh 
negligent, having nothing to do with the purpose of his 
employment, A. was not liable to B. (A). It does not seem 
difficult to pronoimce that lighting a pipe is not in the 
course of a carpenter's employment ; but the case was one 
of difficulty as being complicated by the argument that A., 
having obtained a gratuitous loan of the shed for his own 
purposes, was answerable, without regard to the relation of 
master and servant, for the conduct of persons vising it. 
This failed for want of anything to show that A. had 
acquired the exclusive use or control of the shed. Apart 
from this, the facts come very near to the case which has 
been suggested, but not dealt with by the Courts in any 
reported decision, of a miner opening his safety-lamp to 
get a light for his pipe, and thereby causing an explosion ; 
where '4t seems clear that the employer would not be 
held liable" (c). 

Ezoefls or (c) Another kind of wrong which may be done by a 
^^^^^on^ servant in his master's business, and so as to make the 
of autho- xiiaster liable, is the excessive or erroneous execution of a 

rity. ' 

lawful authority. To establish a right of action against 
the master in such a case it must be shown that (a) the 
servant intended to do on behalf of his master something 
of a kind which he was in fact authorized to do ; (/3) the 
act, if done in a proper manner, or under the circumstances 
erroneously supposed by the servant to exist> would have 
been lawful. 

{b) WiUiams r. Jotut (1866) Ex. bom JJ. 
Ch. 3 H. & 0. 266, 602, 33 L. J. {e) R. S. (now Hr. Justice) 

Ex. 297 ; diss. Mellor and Black- Wright, Emp. L. 1876, p. 47. 



EXCESS OF AUTHORITY BY SERVANT. 81 

The master is chargeable only for acts of an authorized I 
class which in the particular instance are wrongful by 
reason of excess or mistake on the servant's part. For 
acts which he has neither authorized in kind nor sanctioned 
in particular he is not chargeable. 

Most of the cases on this head haye arisen out of acts of Interfer- 
railway servants on behalf of the companies. A porter paasengen 
whose duty is, among other things, to see that passengers ^f^*"^' 
do not get into wrong trains or carriages (but not to 
remove them from a wrong carriage), asks a passenger who 
has just taken his seat where he is going. The passenger 
answers, "To Macclesfield." The porter, thinking the 
passenger is in the wrong train, pulls him out ; but the 
train was in fact going to Macclesfield, and the passenger 
was right. On these facts a jury may well find that the 
porter was acting within his general authority so as to 
make the company liable (d). Here are both error and 
excess in the servant's action : error in supposing facts to 
exist which make *it proper to use his authority (namely, 
that the passenger has got into the wrong train) ; excess 
in the manner of executing his authority, even had the 
facts been as he supposed. But they do not exclude the 
master's liability. 

" A person who puts another in his place to do a class 
of acts in his absence necessarily leaves him to determine, 
according to the circumstances that arise, when an act of 
that class is to be done, and trusts him for the manner in 
which it is done ; and consequently he is held responsible 
for the wrong of the person so intrusted either in the 
manner of doing such an act, or in doing such an act 
under circumstances in which it ought not to have been 

{d)BayUyv,Maneh$9tir^Sheffieldt 278, in Ex. Ch. 8 C. P. 148, 42 
«n^ Zineokuhire R. Co, (1872-3) L. J. 0. P. 78. 
L. R. 7 0. P. 416, 41 L. J. 0. P. 

P. a 



* I 



82 PEB60NS AFFECTED BY TOBTS. 

done; provided that what was done was done, not from 
any caprice of the servanty but in the course of the em- 
ployment" (e). 

Seymour y. Oreentoood (/) is another illustratiye case of 
thiB class. The guard of an omnibus removed a passenger 
whom he thought it proper to remove as being drunken 
and offensive to the other passengers, and in so doing used 
excessive violence. Even if he were altogether mistaken 
as to the conduct and condition of the passenger thus 
removed, the owner of the omnibus was answerable. '^ The 
master, by giving the guard authority to remove offensive 
passengers, necessarily gave him authority to determine 
whether any passenger had misconducted himself." 

Arrest of Another kind of case imder this head is where a servant 
oSt^odm. takes on himself to arrest a supposed offender on his 
employer's behalf. Here it must be shown, both that the 
arrest would have been justified if the offence had really 
been committed by the party arrested, and that to make 
such an arrest was within the employment of the servant 
who made it. As to the latter point, however, "where 
there is a necessity to have a person on the spot to act on 
an emergency, and to determine whether certain things 
shall or shall not be done, the fact that there is a person 
on the spot who is acting as if he had express authority is 
prima facie evidence that he had authority " (g). Railway 
companies have accordingly been held liable for wrongful 
arrests made by their inspectors or other officers as for 
attempted frauds on the company punishable imder statutes 
or authorized by-laws, and the like (A). 

[e) Per Willes J., Bayley y. Man* is) BUtckbnm J., Moore y. Metrop, 

ehotUr, Sheffield, and Lineolnehire J2. Oo. (1872) L. R. 8 Q. B. 86, 39, 

JR. Co.y L. B. 7 0. P. 415, 41 L. J. 42 L. J. Q. B. 28, 

C. P. 278. (A) lb., foUowing Goffy, Q, N. 

(/) 7 H. & K. 355, 30 L. J. Ex. R, Co. (1861) 3 E. ft E. 672, 30 

189, 327, Ex. Ch. (1861). L. J. Q. B. 148. 



UNAUTHORIZED ACTS OF SERVANT. 88 

But the master is not answerable if the servant takes on Aotwhollj 
himself, though in good faith and meaning to further the aaihoriiy, 
master's interest, that which the master has no right to do J^i^ ^ ^®* 
eyen if the f aots were as the servant thinks them to be : as 
where a station-master arrested a passenger for refusing to 
pay for the carriage of a horse, a thing outside the com- 
pany's powers (t). The same rule holds if the particular 
servant's act is plainly beyond his authority, as where the 
o£5cer in charge of a railway station arrests a man on sus- 
picion of stealing the company's goods, an act which is not 
part of the company's general business, nor for their 
apparent benefit (A). In a case not clear on the face of it, 
as where a bank manager commences a prosecution, which 
turns out to be groundless, for a supposed theft of the 
bank's property — a matter not within the ordinary routine 
of banking business, but which might in the particular 
case be within the manager's authority — the extent of the 
servant's authority is a question of fact (/). Much must 
depend on the nature of the matter in which the authority 
is given. Tbos an agent entrusted with general and ample 
powers for the management of a farm has been held to be 
clearly outside the scope of his authority in entering on 
the adjacent owner's land on the other side of a boundary 
ditch in order to cut underwood which was choking the 
ditch and hindering the drainage from the farm. If he 
had done something on his employer's own land which 
was an actionable injury to adjacent land, the employer 
might have been liable. But it was thought unwarrant- 
able to say " that an agent entrusted with authority to be 

(i) FoulUm V. Z. # 8. W. S. Co. H. Co. (1870) L. R. 8 Q. B. 66, 40 

(1867) L. R. 2 Q. B. 534, 36 L. J. L. J. Q. B. 55. 

Q. B. 294. (0 £ank of Ntw South Wale$ y. 

(A) JEdwardiY, L.^N. W,R. Co. Owtton (1879) (J. C.) 4 App. Ca. 

(1870) L. R. 6 C. P. 445, 39 L. J. 270, 48 L. J. P. C. 25. 
0. P. 241 ; cp. Alien v. X. ^ S. W. 

g2 



master's 
purposes. 



84 PEBSONS AFFECTED BY TOBTS. 

exeroiBed over a partioular pieoe of land has authority to 
commit a trespaaB on other land" (m). More generally, 
an authority cannot be implied for acts not necessary to 
protect the employer's property, such as arresting a cus- 
tomer for a supposed attempt to pass bad money (n). 

TViifiil (d) Lastly, a master may be liable eyen for wilful and 

&o.?or deliberate wrongs committed by the servant, proyided they 
be done on the master's account and for Ids purposes : and 
this, no less than in other cases, although the servant's 
conduct is pf a kind actually forbidden by the master. 
Sometimes it has been said that a master is not liable for 
the *' wilful and malicious" wrong of his servant. If 
<< malicious" means ''committed exclusively for the ser- 
vant's private ends," or "malice" means "private spite" (o), 
this is a correct statement; otherwise it is contrary to 
modem authority. The question is not what was the 
nature of the act in itself, but whether the servant intended 
to act in the master's interest. 

This was decided by the Exchequer Chamber in lAmpuB 
V. London General Omnibus Company (/?), where the de- 
fendant company's driver had obstructed the plaintiff's 
omnibus by pulling across the road in front of it, and 
caused it to upset. He had printed instructions not to 
race with or obstruct other omnibuses. Martin B. directed 
the jury, in effect, that if the driver acted in the way of 
his employment and in the supposed interest of his 
employers as against a rival in their business, the em* 



(m) BoHfiffbroke y. Swindon Local (o) See per Bkokbnm J., 1 H. ft 

Board (1874) L. R. 9 C. P. 676, 43 C. 643. 

L. J. C. P. 576. (p) 1 H. & C. 628, 32 L. J. Ex. 

(») Abrahams r. Deakin, '91, 1 34 (1862). This and Seymour r. 

Q. B. 616 (C. A.), 60 L. J. Q. B. Greenwood (above) oyetmle anj- 

238. thing to the contrary in JPManM 

T. CrieJIeett, I East, 106, 6 B. B. 618. 



FKAUD OP SERVANT, 



85 



ployers were answerable for his conduct, but they were 
not answerable if he acted only for some purpose of his 
own : and this was approyed by the Court (q) above. The 
driver " was employed not only to drive the omnibus, but 
also to get as much money as he could for his master, and 
to do it in rivalry with other omnibuses on the road. The 
act of driving as he did is not inoonsiBtent with his em- 
ployment, when explained by his desire to get before the 
other omnibus." As to the company's instructions, ''the 
law is not so futile as to allow a master, by giving secret 
instructions to Ids servant, to discharge himself itom 
liabiUty"(r). 

That an employer is liable for frauds of his servant Fraud of 
committed without authority, but in the course of the JS^^ 
service and in apparent furtherance of the employer's 
purposes, was established with more difficulty; for it 
seemed harsh to impute deceit to a man personally inno- 
cent of it, or (as in the decisive cases) to a corporation, 
which, not being a natural person, is incapable of personal 
wrong-doing (s). But when it was fully realized that in 
aU these cases the master's liability is imposed by the 
policy of the law without regard to personal default on 
his part, so that his express command or privity need not 
be shown, it was a necessary consequence that fraud should 
be on the same footing as any other wrong (t). So the 



{q) WDliamB, Grompton, WiUes, 
Byles, Blackburn JJ., dias. Wight- 
man, J. 

(r) WillfiB J. 1 H. & C. at p. 539. 

(#) Thia particular difficulty ia 
fallaciona. It ia in trath neither 
more nor leaa euj to think of a 
oorporation aa deceiving (or being 
deoeiyed) than aa having a oon« 
Benting mind. In no caae can a 



oorporation be invested with either 
lights or duties except through 
natural persona who are its agents. 
Gp. British Mutual Banking Co. v. 
Chamufood Forest R, Co, (1887) 18 
Q. B. Div. 714, 66 L. J. Q. B. 449. 
(Q It makes no difference if the 
fraud includes a forgeiy : Shaw v. 
Tort Philip Gold Mining Co, (1884) 
13 Q. B. D. 103. 



86 



PERSONS AFFECTED BY TOETS. 



matter is handled in our leading authority, the judgment 
of the Exchequer Chamber delivered by WiUes J. in 
Barwick y. English Joint Stock Bank. 

" With respect to the question, whether a principal is 
answerable for the act of his agent in the course of his 
master's business, and for his master's benefit, no sensible 
distinction can be drawn between the case of fraud and 
the case of any other wrong " (w). 

This has been more than once fully approved in the 
Privy Coimcil (a?), and may now be taken, notwithstanding 
certain appearances of conflict (y), to have the approval of 
the House of Lords also (s). What has been said to the 
contrary was either extra-judicial, as going beyond the 
ratio decidendi of the House, or is to be accepted as limited 
to the particular case where a member of an incorporated 
company, not having ceased to be a member, seeks to 
charge the company with the fraud of its directors or other 
agents in inducing him to join it (a). 

But conversely a false and fraudulent statement of a 



(w) (1867] L. R. 2 Ex. at p. 265. 

{z) Mackay y. Commercial Bank 
of New Brufuwick (1874) L. R. 6 
P. C. 412, 43 L. J. P. C. 31 ; Swire 
T. Francis (1877) 3 App. Ca. 106, 
47 L. J. P. C. 18. 

(y) Addie T. Western Bank of 
Scotland (1867) L. R. 1 Sc. & D. 
145, dicta at pp. 158, 166, 167. 

(z) ffouldsworthr. Citi/ofGlasffOw 
Bank (1880) 5 App. Ca. 317. 

(a) lb.. Lord Selbome at p. 326, 
Lord Hatherley at p. 331 ; Lord 
Blackburn's langpiag^ at p. 339 is 
more cantiouB, perhaps for the yery 
reason that he was a party to the 
decision of Barwick y. English 
Joint Stock Bank, Shortly, the 
shareholder is in this dilemma: 



while he is a member of the oom« 
pany, he is damnified by the alleged 
deceit, if at all, solely in that he is 
liable as a shareholder to contribute 
to the company's debts : this liabi- 
Uty being of the essence of a share- 
holder's position, claiming com- 
pensation from the company for it 
involves him in a new liability to 
contribute to that compensation 
itself, which is an absurd circuity. 
But if his liability as a shareholder 
has ceased, he is no longer damni- 
fied. Therefore restitution only 
(by rescission of his contract), not 
compensation, is the shareholder's 
remedy as against the company: 
though the fraudulent agent re- 
mains personally liable. 



PABTNEES. 87 

Bervani made for ends of his own, though in answer to a 
question of a kind he was authorized to answer on his 
master's behalf, will not render the master liable in an 
aotion for deceit (6). 

The leading case of Mersey Docks Trustees v. Oibbs {c) 
may also be referred to in this connexion, as illustrating 
the general principles according to which liabilities are 
imposed on corporations and public bodies. 

There is abundant authority in partnership law to show Liability 
that a firm is answerable for fraudulent misappropriation ^^^ ^^^ 
of funds, and the like, committed by one of the partners partner, 
in the course of the firm's business and within the scope of 
his usual authority, though no benefit be derived therefrom 
by the other partners. But, agreeably to the principles I 
above stated, the firm is not liable if the transaction 
undertaken by the defaulting partner is outside the course 
of partnership business. Where, for example, one of a firm | 
of solicitors receives money to be placed in a specified 
investment, the firm must answer for his application of it, 
but not, as a rule, if he receives it with general instructions 
to invest it for the client at his own discretion {d). Again, 
the firm is not liable if the facts show that exclusive credit 
was given to the actual wrong-doer {e). In all these cases 
the vnrong is evidently wilful. In all or most of them, 
however, it is at the same time a breach of contract or 
trust. And it seems to be on this ground that the firm 
is held liable even when the defaulting partner, though 

{h) Briiiih Mutual Banking Co, 24 Ch. D. 731, with Earman y. 

T. Chamwood Forest B, Co, (1887) Johnson, 2 E. ft B. 61, 22 L. J. 

18 Q. B. Diy. 714, 66 L. J. Q. B. Q. B. 297. 

449. M Bx parte FffrSf 1 1^,227. See 

{e) L. R. 1 H. L. 93 (1864-6). more UlustrationB in my " Digest 

Id) Partnership Aot^ 1890, ss. 10 of the Law of Partaenhip,*' 6ih 

—12. Cp. Blair v. Bromley, 2 Ph. ed. pp. 43—46. • 

364, and Cleather t. Tioiwlen (1883) 



i38 PERSONS AFFECTED BY TORTS. 

professing to act on behalf of the firm, misapplies funds or 
seonritiGS merely for his own separate gain. The reasons 
given are not always free from admixture of the Protean 
doctrine of '' making representations good/' which is now, 
I venture to think, exploded (/), 

Injiiries to 3. There remains to be oonsidered the modification of a 
bjfaaltof Blaster's liability for the wrongful act, neglect, or default 
^^^^^- of his servant when the person injured is himself in and 
about the same master's service. It is a topic far from 
clear in principle; the Employers' Liability Act, 1880, 
has obscurely indicated a sort of counter principle, and in- 
troduced a number of minute and empirical exceptions, 
or rather limitations of the exceptional rule in question. 
Ooxmnon That rule, as it stood before the Act of 1880, is that a 
master's master is not liable to his servant for injury received from 
"'"^™^*^' any ordinary risk of or incident to the service, including 
acts or defaults of any other person employed in the same 
service. Our law can show no more curious instance of a 
rapid modem development. The first evidence of any 
such rule is in Priest let/ v. Fowler {g), decided in 1837, 
which proceeds on the theory (if on any definite theory) 
that the master ^' cannot be bound to take more care of 
the servant than he may reasonably be expected to do of 
himself;" that a servant has better opportunities than his 
master of watching and controlling the conduct of his 
f ellow»servants ; and that a contrary doctrine would lead 
to intolerable inconvenience, and encourage servants to be 
negligent. According to this there would be a sort of 
presumption that the servant suffered to some extent by 

(/) IhayediBoaflBeditmAppen- (^) 3 M. & W. 1. All the case 

dLx K. to * * Principles of Contraot,*' actually decided was that a master 

6th ed. p. 711. See now Madditon does not warrant to his servant the 

y. Alder$on (1883) 8 App. Ca. at sufficiency and safety of a cairiagQ 

p. 473, 51 L. J. Q. B. 737. in which he sends him out. 



oases. 



** COMMON EMPLOYMENT.'' 89 

"want of diligence on his own part. But it is needless to 
pursue this reasoning ; for the like result was a few years 
afterwards arrived at bj Chief Justice Shaw of Massa- 
chusetts by another way, and in a judgment which is the 
fountain-head of all the later decisions (A), and has now been 
judicially recognized in England as '^the most complete 
exposition of what constitutes common employment" (e). 
The accepted doctrine is to this effect. Strangers can hold Reason 
the master liable for the negligence of a servant about his ^e^t^ 
business. But in the case where the person injured is him- 
self a servant in the same business he is not in the same posi- 
tion as a stranger. He has of his free wiU entered into the 
business and made it his own. He cannot say to the 
master, You shall so conduct your business as not to injure 
me by want of due care and caution therein. For he has 
agreed with the master to serve in that business, and his 
claims on the master depend on the contract of service. 
Why should it be an implied term of that contract, not 
being an express one, that the master shall indemnify him 
against the negligence of a fellow-servant, or any other 
current risk P It is rather to be implied that he contracted 
with the risk before his eyes, and that the dangers of the 
service, taken all round, were considered in fixing the rate 
of payment. This is, I believe, a fair summary of the 
reasoning which has prevailed in the authorities. With 
its soundness we are not here concerned. It was not only 
adopted by the House of Lords for England, but forced by 
them upon the reluctant Courts of Scotland to make the 
jurisprudence of the two countries imiform (k). No such 
doctrine appears to exist in the law of any other country 



(A) Farwell v. Boiion and Wor- Petrel, '93, P. 320, 823, 1 R. 651, 

eetUr Railroad Corporation, 4 Met. 663. 

49. {k) See Wihon y. Merry (1868) 

(i) Sir FrandB Jeune in The L. B. 1 So. & D. 326. 



90 PERSONS AFFECfTED BY TORTS. 

in Europe. The following is a clear judicial statement of 
it in its settled form : *^ A servant, when he engages to 
serve a master, underta.kes, as between himself and his 
master, to run all the ordinary risks of the service, in- 
cluding the risk of negligence upon the part of a fellow- 
servant when he is acting in the discharge of his duty as 
servant of him who is the common master of both " (/). 

The Ber- The phrase " common emplojrment '' is frequent in this 
not be ^ olass of cases. But it is misleading in that it suggests a 
MtmeV^d linaitation of the rule to circumstances where the injured 
of work: servant had in fact some opportunity of observing and 
guarding against the conduct of the negligent one; a 
limitation rejected by the Massachusetts Court in Far- 
well's case, where an engine-driver was injured by the 
negligence of a switchman (pointsman as we say on 
English railways) in the same company's service, and 
afterwards constantly rejected by the English Courts. 

" When the object to be accomplished is one and the 
same, when the employers are the same, and the several 
persons employed derive their authority and their com- 
pensation from the same source, it would be extremely 
difficult to distinguish what constitutes one department 
and what a distinct department of duty. It would vary 
with the circumstances of every case. If it were made to 
depend upon the nearness or distance of the persons from 
each other, the question would immediately arise, how near 
or how distant must they be to be in the same or different 
departments. In a blacksmith's shop, persons working in 
the same building, at different fires, may be quite indepen- 
dent of each other, though only a few feet distant. In a 

(Q Erie G. J. in Tunney y. Mid' similar langnage in LowUy, JSbiceU 
lands. Co, (1866) L. B. 1 0. P. at (1876) 1 G. P. D. at p. 167, 45 
p. 296 ; Azohibold J. used very L. J. G. P. ZSl. 



" COMMON EMPLOYMENT." 



91 



ropewalk seyeral may be at work on the same piece of 
oordage, at the same time, at many hundred feet distant 
from each other, and beyond the reach of sight or voice, 
and yet acting together. 

** Besides, it appears to us that the argument rests upon 
an assumed principle of responsibility which does not exist. 
The master, in the case supposed, is not exempt from lia- 
bility because the servant has better means of providing for 
his safety when he is employed in immediate connexion 
with those from whose negligence he might suffer, but 
because the implwd contract of the master does not extend 
to indemnify the servant against the negligence of any one 
but himself ; and he is not liable in tort, as for the negli- 
gence of his servant, because the person sufFering does not 
stand towards him in the relation of a stranger, but is 
one whose rights are regulated by contract, express or 
implied" (m). 

So it has been said that ** we must not over-refine, but provided 
look at the common object, and not at the common imme- general 
diate object" (n). All persons engaged under the flaDi©i^w°° 
employer for the purposes of the same business, however] 
different in detail those purposes may be, are fellow- 
servants in a common employment within the meaning of 
this rule : for example, a carpenter doing work on the roof ^ 
of an engine-shed and porters moving an engine on a 



(ffi) Shaw 0. J.) FarweU r. Bot' 
iofiy ^. Corporation^ 4 Met. 49. M. 
Sainctelette of Brussels, and M. 
Baozet of Lyons, whom he quotes 
{op, eit. p. 140), differ from the 
current view among French-speak- 
ing hiwyers, and agree with Shaw 
C. J. and OUT Courts, in referring 
the wholia matter to the contract 
between the master and servant; 
but ihej arriye at the widely dif- 



ferent result of holding the master 
bound, as an implied term of the 
contract, to insure the 8er\'ant 
against aU accidents in the course 
of the seirioe, and not due to the 
servant's own fault or via major, 

(n) Pollock C. B., Morgan y. VaU 
of Neath R. Co, (1866) Ex. Oh. 
L. B. 1 Q. B. 149, 165, 36 L. J. 
Q. B. 23. 



93 



PEB80N8 AFFECTED BY TORTS. 



immate- 
riaL 



turntable (o). '* Where there 10 one oommon general 
object, in attaining which a servant is exposed to risk, he 
is not entitled to sue the master if he is injured bj the 
negligence of another servant whilst engaged in furthering 
the same object " (jo). 

Belatire It makes no difference if the servant bj whose negli- 

rankofthe ji • • • ^ • n it 

MsfraDta gence another is injured is a foreman, manager, or other 
superior in the same employment, whose orders the other 
was by the terms of his service bound to obey. The fore- 
man or manager is only a servant having greater authority: 
foremen and workmen, of whatever rank, and however 
authority and duty may be distributed among them, are 
"aU links in the same chain" {q). So the captain em- 
t)loyed by a shipowner is a fellow-servant of the crew, and 
It sailor injured by the captain's negligence has no cause 
{of action against the owner (r). The master is bound, as 
between himself and his servants, to exercise due ccure in 
selecting proper and competent persons for the work 
(whether as fellow-workmen in the ordinary sense, or as 
superintendents or foremen), and to furnish suitable means 
and resources to accomplish the work («), and he is not 
answerable further {t). 



(0) See last note. 

{p) Thesiger L. J., CharUt y. 
Taylor (1878) 3 C. P. Div. 492, 498. 

{q) FeltKam t. England (1866) 
L. R. 2 Q. B. 33, 36 L. J. Q. B. 
14 ; Wilton t. Mmrry (1868) L. R. 1 
So. & D. 326 : see per Lord Cairns 
at p. 333, and per Lord Colonsaj 
at p. 346. The French word col" 
laboraUur, whioh does not mean 
*' fellow-workman " at all, was at 
one time absurdly introduoed into 
these cases, it is believed by Lord 
Brougham, and occurs as late as 
Wihon T. Metxy, 



(r) Medley t. Tinkney and Son$* 
S. S. Co., '02, 1 Q. B. 68, 61 L. J. 
Q. B. 179, C. A., afld. in H. L., 
'94, A. C. 222, 6 R. Apr. 12. 

(«) According to some decisions, 
which seem on principle doubtful, 
he is bound only not to furnish 
means or resources which are to 
his own knowledge defective : Gal' 
lagher y. Fiper (1864) 16 G. B. N. S. 
669, 33 L. J. G. P. 829. And 
more lately it has been decided in 
the Court of Appeal that where a 



(t) See next page. 



" COMMON EMPLOYMENT." 



9a 



Attempts have been made to hold that the servants of Senrants 
enh-contraotors for portions of a general undertaking were oon- 
for this purpose fellow-servants with the servants directly *™*^'* 
employed by the principal oontractorsy even without evi- 
dence that the sub-contractors' work was under the direction 
or control of the chief contractors. This artificial and 
unjust extension of a highly artificial rule has fortunately 
been stopped by the House of Lords (u). 

Moreover, a stranger who gives his help without reward Volonteer 
to a man's servants engaged in any work is held to put iaoDsame 
himself, as regards the master's liability towards him, in ^^^^^ 
the same position as if he were a servant. Having of his 
free will (though not under a contract of service) exposed 
himself to the ordinary risks of the work and made himself 
a partaker in them, he is not entitled to be indenmified 
against them by the master any more than if he were in 
his regular employment {x). This is really a branch of 



servant seeks to hold his master 
liable for injury caused by the 
dangerous condition of a building 
"where he is employed, he must 
allege distinctly both that the 
master knew of the danger and 
that he, the servant, was ignorant 
of it: Griffiths v. London and St, 
Katharine Doekt Go, (1884) 13 Q. B. 
DiT. 259, 58 L. J. Q. B. 504. Cp. 
Thomas T. Quartermaino (1887) 18 
Q. B. Biy. 685, 56 L. J. Q. B. 340. 
{t) Lord Cairns, as above: to 
same effect Lord Wensleydale, 
Wsottu y. Mathinon (1861) 4 Maoq. 
at p. 227 : '' All that the master is 
bound to do is to provide maohineiy 
fit and proper for the work, and to 
take care to have it superintended 
by himself or his workmen in a fit 
and proper manner." In Shipp y. 



E. C. R, Co, (1863) 9 Ex. 223, 28 
L. J. Ex. 23, it was said that thia 
duty does not extend to having a 
sufficient number of servants for 
the work: ted qu. The dedsion 
was partly on the ground that the 
plaintiff was in fact well acquainted 
with the risk and had never made 
any complaint. 

(m) Johneon y. Lindtayy '9t, A. 
C. 371, 65 L. T. 97, overruling 
Wiggett y. Fox, 11 Ex. 832, 26 
L. J. Ex. 188. Cp. Cameron y» 
Nyttrom (J. C.) '93, A. C. 808, 62 
L. J. P. C. 85, 1 R. 362, p. 76, 
above. 

{x) Potter y. Faulkner (1861) Ex. 
Ch. 1 B. & S. 800, 31 L. J. Q. B. 
30, approving Degg v. Midland B^ 
Co. (1857) 1 H. ft N. 773, 26 L. J. 
Ex. 174. 



94 PEKSONS APPECTED BY T0RT8. 

the doctrine ^Wolenti non fit iniuria/' disoosBed below 
under the title of General Exceptions. 

Exception On the other hand, a master who takes an active part In 
master * ^^^ own work is not only himself liable to a servant 
interferes injured by 1^^ negligence, but, if he has partners in the 
business, makes them liable also. For he is the agent of 
the firm, but not a servant (y) : the partners are generaUj 
answerable for his conduct, yet cannot say he was a fellow- 
servant of the injured man. 

Em- Such were the results arrived at by a number of modem 

Liability authorities, which it seems useless to cite in more detail (z) : 
Act, 1880. ^jjQ j^g^ though not abrogated, being greatly limited in 
application by the statute of 1880. This Act (43 & 44 
Yict. c. 42) is on the face of it an experimental and 
empirical compromise between conflicting interests. It 
was temporary, being enacted only for seven years and the 
next session of Parliament, and since continued from time 
to time (a) ; it is confined in its operation to certain speci- 
fied causes of injury ; and only certain kinds of servants 
are entitled to the benefit of it, and then upon restrictive 
conditions as to notice of action, mode of trial, and amount 
of compensation, which are unknown to the common law, 
and with a special period of limitation. The effect is that 
a '^ workman " within the meaning of the Act is put as 
against his employer in approximately (not altogether, I 
think) the same position as an outsider as regards the safe 
and fit condition of the material instruments, fixed or 
moveable, of the master's business. He is also entitled to 
compensation for harm incurred through the negligence of 

(y) Athiporth T. Stanwix (1861) 3 genoe, pp. 73—76, 2nd ed.). 
E. & E. 701, 30 L. J. Q. B. 183. (a) Fnither legislation has been 

(z) They are well collected by expected and attempted, but 

Mr. Horace Smith (Law o£ NegU* hitherto (1894) without result. 



employers' liability act. 95 

another servant exeroiaing superintendence, or by the 
effect of spedfio orders or roles issued by the master or 
some one representing him ; and there is a special wider 
provision for the benefit of railway servants, which 
virtually abolishes the master's immunity as to railway 
accidents in the ordinary sense of that term. So fax as 
the Act has any principle, it is that of hold i nj j^ the em- 
ployer a nswerable for the conduct of those who are in 
delegated authority under him . It is noticeable that 
almost all the litigation upon the Act has been caused 
either by its minute provisions as to notice of action, or by 
desperate attempts to evade those parts of its language 
which are plain enough to common sense. The text of the 
Act, and references to the decisions upon it, vrill be found 
in the Appendix (Note B). 

On the whole we have, in a matter of general public Beenlti&g 
importance and affecting large classes of persons who are ^^f 
neither learned in the law nor well able to procure learned *^® ^^' 
advice, the following singularly intricate and clumsy state 
of things. 

First, there is the general rule of a master's liability for 
his servants (itself in some sense an exceptional rule to 
begin with). 

Secondly, the immunity of the master where the person 
injured is also his servant. 

Thirdly, in the words of the marginal notes of the 
Employers' Liability Act, " amendment of law " by a 
series of elaborate exceptions to that immunity. 

Fourthly, " exceptions to amendment of law " by pro- 
visoes which are mostly but not wholly re-statements of 
the common law. 

Fifthly, minute and vexatious regulations as to pro- 
cedure in the cases within the first set of exceptions. 



96 



PERSONS APPECTED BY TORTS. 



It is incredible that Buch a state of things should nowa-* 
days be permanently accepted either in substance or in 
form. This, however, is not the place to discuss the 
principles of the controversy, which I have attempted to do 
elsewhere {b). In the United States the doctrine laid down 
by the Supreme Court of Massachusetts in Farwell's case 
has been very generally followed (c) , Except in Massachu- 
setts, however, an employer does not so easily avoid 
responsibility by delegating his authority, as to choice of 
servants or otherwise, to an intermediate superintendent {d). 
There has been a good deal of State legislation, but mostly 
for the protection of railway servants only. Massachusetts 
has a more recent and more comprehensive statute based on 
the English Act of 1880 {e). A collection of more or less 
detailed reports ^' on the laws regulating the liability of 
employers in foreign countries " has been published by the 
Foreign Office (/). 



(b) Easa^ in Jurispraddnce and 
Ethics (1882) oh. 6. See for yery 
f all information and diaouBsion on 
the whole matter the evidence 
taken hj the Select Committees of 
the Hoose of Commons in 1876 and 
1877 (Pari. Papers, H. C. 1876, 
372; 1877,285). And see the final 
Beport of the Labour Commission, 
1894, Part II. Appendix V. (Memo- 
randum on Evidence relating to 
Employers' Liability). 

(e) See Baltimore and Ohio H. £. 
Co. Y. JBauffh (1893) 149 U. S. 368. 

{d) Cooley on Torts, 560 ; Shear- 



man and Bedfield, ss. 86, 88, 102. 
And see Chicago M, ^ S. R. Co, ▼• 
Ro99 (1884) 112 U. S. 377. Also a 
stricter view than ours is taken of 
a master's duty to disclose to his 
servant any non-apparent risks of 
the employment which are within 
his own knowledge: Wheeler ▼. 
Moion Manufacturing Co. (1883) 135 
Mass. 294. 

{e) See Mr. McEinney's Article 
in L. Q. R. vi. 189, April 1890, at 
p. 197. 

(/) Pari. Papers, Commercial, 
No. 21, 1886. 



97 



CHAPTER IV. 



GENERAL EXCEPTIONS. 



We have oonsidered the general principles of liability for Conditions 
civil wrongs. It now becomes needful to consider the Sbiuty^ 
general exceptions to which these principles are subject, or '°^JJ^ /^^^ 
in other words the rules of immunity which limit the rules wiongfol. 
of liability. There are various conditions which, when pre- 
sent, will prevent an act from being wrongful which in their 
absence would be a wrong. Under such conditions the act 
is said to be justified or excused. And when an act is said 
in general terms to be wrongful, it is assumed that no such 
qualifying condition exists. It is an actionable wrong, 
generally speaking, to lay hands on a man in the way of 
force or restraint. But it is the right of every man to 
defend himself against unlawful force, and it is the 
duty of officers of justice to apply force and restraint in 
various degrees, from simple arrest to the infliction of death 
itself, in execution of the process and sentences of the law. 
Here the harm done, and vtdlfully done, is justified. 
There are incidents, again, in every football match which 
an iminstruoted observer might easily take for a confused 
fight of savages, and grave hurt sometimes ensues to 
one or more of the players. Yet, so long as the play is 
fairly conducted according to the rules agreed upon, there 
is no wrong and no cause of action. For the players have 
joined in the game of their own free will, and accepted its 
risks. Not that a man is bound to play football or any 
other rough game, but if he does he must abide its 

p. H 



98 GENERAL EXCEPTIONS. 

ordinary chanoes. Here the harm done, if not justified 
(for, though in a manner unavoidable, it was not in a legal 
sense necessary), is nevertheless excused (a). Again, defa- 
mation is a wrong; but there are certain occasions on 
which a man may with impunity make and publish untrue 
statements to the prejudice of another. Again, ^' sic utere 
tuo ut aUenum non laedas " is said to be a precept of law ; 
yet there are divers things a man may freely do for his 
own ends, though he well knows that his neighbour will 
in some way be the worse for them. 

General Some of the principles by which liability is excluded are 

^lar'ex- applicable indifferently to all or most kinds of injury, 
oeptions. ^ijjie others are confined to some one species. The rule as 
to " privileged conmiunications " belongs only to the law 
of libel and slander, and must be dealt with under that 
particular branch of the subject. So the rule as to 
" contributory negligence " qualifies liability for negli- 
gence, and can be understood only in connexion with the 
special rules determining such liability. Exceptions like 
those of consent and inevitable accident, on the other hand, 
are of such wide application that they cannot be conve- 
niently dealt with under any one special head. This class 
is aptly denoted in the Indian Penal Code (for the same 
or similar principles apply to the law of criminal liability) 
by the name of Q-eneral Exceptions. And these are the 
exceptions which now concern us. The following seem to 
be their chief categories. An action is within certain 
limits not maintainable in respect of the acts of political 
power called " acts of state," nor of judicial acts. Execu- 

{a) Jnstifioation seems to be the ezonse, when it is but an accident : 

proper word when the harm suf- but I do not know that the pre- 

fered is inseparably incident to cise distinction is always possible 

the performance of a legal duty or to observe, or that anything turns 

the exercise of a common right ; on it. 



ACTS OP STATE. *9 

tiye acts of lawful authority f onn another similar class. 
Then a class of acts has to be considered which may be 
called quasi-judicial, and which, also within limits, are 
protected. Also, there are various cases in which un- 
qualified or qualified immunity is conferred upon private 
persons exercising an authority or power specially conferred 
by law. "We may regard aU these as cases of privilege in 
respect of the person or the occasion. After these come 
exceptions which are more an affair of conmion right: 
inevitable accident (a point, strange to say, not clearly free 
from doubt), harm inevitably incident to the ordinary 
exercise of rights, harm suffered by consent or under 
conditions amounting to acceptance of the risk, and harm 
inflicted in self-defence or (in some cases) otherwise by 
necessity. These grounds of exemption from civil liability 
for wrongs have to be severally examined and defined. 
And first of " Acts of State.*' 



1. — AcU of State. 

It is by no means easy to say what an act of state is, Aoto of 
though the term is not of unfrequent occurrence. On the 
whole, it appears to signify — (1) An act done, or adopted 
by the prince or rulers of a foreign independent State in 
their political and sovereign capacity, and within the limits 
of their de facto political sovereignty ; (2) more particu- 
larly (in the words of Sir James Stephen (6) ), "an act 
injurious to the person or to the property of some person 
who is not at the time of that act a subject (o) of her 

{b) History- of the Criminal Law, uader the protection of English 

ii. CI. law: therefore an act of state in 

(e) This includes a friendly alien this sense cannot take place in 

living in '* temporary allegiance '* England in time of pieaoe. 

h2 



i6b genS&aL exceptions. • 

Majesty ; wtich act is done by any representative of her 
Majesty's authority, civil or military, and is either pre- 
viously sanctioned, or subsequently ratified by her 
Majesty" (such sanction or ratification being, of course, 
expressed in the proper manner through responsible 
ministers). 

General Our courts of justice profess themselves not competent 
S^^^. to discuss acts of these kinds for reasons thus expressed 
^''' by the Judicial Committee of the Privy Council :— " The 
transactions of independent States between each other" 
(and with subjects of other States), '^are governed by other 
laws than those which municipal courts administer ; such 
courts have neither the means of deciding what is right, 
nor the power of enforcing any decision which they may 
make" (d). 

A series of decisions of the Indian Supreme Courts and 
the Privy Council have applied this rule to the dealings of 
the East India Company with native States and with the 
property of native princes (e). In these cases the line 
between public and private property, between acts of 
regular administration and acts of war or of annexation, is 
not always easy to draw. Most of them turn on acts of 
political annexation. Persons who by such an act become 
British subjects do not thereby become entitled to complain 
in mimidpal courts deriving their authority from the 
British Government of the act of annexation itself or 
anything incident to it. In such a case the only remedy 
is by petition of right to the Crown. And the effect is the 
same if the act is originally an excess of authority, but is 
afterwards ratified by the Crown. 

(<q Secretary of State in Council («) See Dots v. Secretary of StaU 
qf India t. Kamaehee Boye Sahaba for India in Council (1876) 19 £q. 
(1859) 13 Moo. P. C< 22, 16. 609, and the case last cited. 



ACTS OF STATE. . 101 

"The leading case on this subject is £uf*an v. Den- 
man (/). ThiB was an action against Captain Denman, a < 
-captain in the navj, for burning certain barracoons on the | 
West Coast of Africa, and releasing the slaves contained | 
in them. His conduct in so doing was approved bj a . 
letter written bj Mr. Stephen, then Under Secretary of 
State for the Colonies, bj the direction of Lord John 
Bussell, then Secretary of State. It was held that the ' 
owner of the slaves [a Spanish subject] could recover no j 
damages for his loss, as the effect of the ratification of 
Captain Denman's act was to convert what he had done 
into an act of state, for which no action would Ue." ^ 

So far Sir James Stephen, in his History of the 
Criminal Law (g). It is only necessary to add, as he did 
on the next page, that " as between the sovg rgjigp n^(\ h\ti 
subjects the re can be n o su^ tiling as an act of state. 
Courts of law are established for the express purpose of 
limiting public authority in its conduct towards indi- 
viduals. If one British subject puts another to death or 
destroys his property by the express command of the King, 
that command is no protection to the person who executes 
it unless it is in itself lawful, and it is the duty of the 
proper courts of justice to determine whether it is lawful 
or not " : as, for example, when the Court of King's 
Bench decided that a Secretary of State had no power to 
issue general warrants to search for and seize papers and 
the like (A). 

Another question which has been raised in the colonies Looal 
and Ireland, but which by its nature cannot come before J^L^JSi 
an Enelish court for direct decision, is how far an action ▼loeroy or 

o ' goyemor. 

is maintainable against an officer in the nature of a viceroy 

(/) (1847) 2 Ex. 167. W Sntick v. Carringtim, 19 St. 

(y) Vol. u. p. 64. Tr. 1048. 



103 



QENERAL EXCEPTIONS. 



Power to 

exclude 

alieiiB. 



Acts of 
foreign 
powers. 



during his term of offioe, and in the local oonrts of the 
territory in which he represents the Crown. It has been 
held by the Judicial Committee that the lieutenant- 
Governor of a colony is not exempt from suit in the courts 
of that colony for a debt or other merely private cause of 
action (t ) ; and by the Irish oourts, on the other hand, that 
the Lord-lieutenant is exempt from being sued in Ireland 
for an act done in his official or " politic " capacity (j). 

An alien not already admitted to the enjoyment of civil 
rights in England (or any British possession) seems to 
have no remedy in our law if prevented by the local 
executive authority from entering British territory (k). It 
seems doubtful whether admission to temporary allegiance 
in one part of the British Empire would confer any right 
to be admitted to another part. 

There is another quite distinct point of jurisdiction in 
connexion with which the term '^ act of state '' is used. 
A sovereign prince or other person representing an inde- 
pendent power is not liable to be sued in the courts of 
this country for acts done in a sovereign capacity; and 
this even if in some other capacity he is a British subject, 
as was the case with the King of Hanover, who remained 
an English peer after the personal union between the 



(i) mil Y. Bi0ff0 (1841) 8 Moo. 
P. G. 466; dissenting from Lord 
Hansfield's dictnm in Mostyn ▼. 
Fabrigasy Cowp. 172, that < locally 
doriDg his government no civil or 
criminal action wiU lie against him ; ' ' 
though it may be that he is privi- 
lege from personal arrest where 
arrest would, hj the local law, be 
part of the ordinary process. 

(J) Zubp V. fFodehousCf 17 Ir. 
G. L. B. 618 ; Sullivan v. Spencer, 
Ir. B. 6 G. L. 173, following 



Tandjf v. Westmoreland^ 27 St. 
Tr. 1246. These cases go very 
far, for the Lord Lieutenant was 
not even called on to plead his 
privilege, but the Gourt stayed 
proceedings against him on motion. 
As to the effect of a local Act of 
indemnity, see Phillipt y. £yre 
(1870) Ex. Gh. L. R. 6 Q. B. 1. 

(k) Mmgrave y. Chung Teeong 
Toy, »91, A. G. 272, 60 L. J. 
P. G. 28. 



ACTS OP STATE. 



103 



Crownfl of England and Hanover was dissolved (/). This 
rule is included in a wider one which not only extends 
beyond the subject of this work, but belongs to inter- 
national as much as to municipal law. It has been thus 
expressed by the Court of Appeal : *' As a consequence of 
the absolute independence of every sovereign authority, 
and of the international comity which induces every sove- 
reign state to respect the independence of every other 
sovereign state, each and eveiy one declines to exercise 
by means of any of its Courts, any of its territorial juris- 
diction over the person of any sovereign or ambassador of 
any other state, or over the public property of any state 
which is destined to its public use, or over the property of 
any ambassador (m), though such sovereign, ambassador, 
or property be within its territory, and therefore, but for 
the common agreement, subject to its jurisdiction " (n). 

If we may generalize from the doctrine of our own flummary. 
courts, the result seems to be that an act done by the I 
authority, previous or subsequent, of the government of a 
sovereign state in the exercise of de facto sovereignty (o), 
is not examinable at all in the courts of justice of any 
other state. So far forth as it affects persons not subject 
to the government in question, it is not examinable in the I 



(t) Luke of Bruntwieh v. King 
of Hanover (1843-4) 6 Beav. 1, 67 ; 
aflSzmed in the House of Lords, 
2 H. L. C. 1. 

(m) What if cattle belonging to 
a foreign ambassador were dis- 
trained damage feasant ? It would 
seem he could not get them back 
without submitting to the juris- 
diction. 

(»} The Parlement Beige (1880) 
5 P. D. 197, 214. 



(o) I have not met with a dis- 
tinct statement of this qualifica- 
tion in existing authorities, but it 
is evidently assumed hj them, and 
is necessary for the preservation 
of every state's sovereign rights 
within its own jurisdiction. Plainly 
the command of a foreign govern- 
ment would be no answer to an 
action for trespass to land, or for 
the arrest of an alleged offender 
against a foreign law, within the 
body of an English county. 



104 GENERAL EXCEPTIONS. 

' ordinary courts of that state itself. If and so far as it 
affects a subject of the same state, it may be, and in 
England it is, examinable by the courts in their ordinary 
jurisdiction. In most Continental countries, however, if 
not in all, the remedy for such acts must be sought before 
a special tribunal (in France the Conseil d'Etat: the 
preliminary question whether the ordinary court or the 
Conseil d'Etat has jurisdiction is decided by the Tribunal 
des Conflits, a peculiar and composite court) {p). 



2. — Judicial Acts. 

Jodioial Next as to judicial acts. The rule is that ** no action 
will lie a^inst a judg e for any acts done or w^j^a apnl^fln 
in his judicial capacity in a court of justice " (q). And the 
exemption is not confined to judges of superior courts. It 
is founded on the necessity of judges being independent in 
the exercise of their office, a reason which applies equally 
to all judicial proceedings. But in order to establish the 
exemption as regards proceedings in an inferior court, the 
judge must show that at the time of the alleged wrong- 
doing some matter was before him in which he had 
jurisdiction (whereas in the case of a superior court it is 
for the plaintiff to prove want of jurisdiction) ; and the 
act complained of must be of a kind which he had power 
to do as judge in that matter. 

Thus a revising barrister has power by statute (r) *^ to 
order any person to be removed from his court who shall 
interrupt the business of the court, or refuse to obey his 

(p) Law of May 24, 1872. Bat effect of many previoiifl deoiflions. 
tbe principle IB anoient, and the old The aathoritiee were lately re- 
law is BtiU cited on yarioiu points. viewed and confirmed hj the C. A., 

{q) Scott T. Stantfield (1868) L. Anderton v. Oorris (1894), not yet 

B. 3 Ex. 220, 37 L. J. Ex. 156, reported, 

which oonfiims and sums up the (r) 28 & 29 Tiot. o. 36, a. 16. 



JUDICXIL ACTS. 105 

lawful orders in respect of the same " : but it is an action- 
able trespass if under colour of this power he causes a 
person to be remored from the court, not because that 
person is then and there making a disturbance, but because 
in the revising barrister's opinion he improperly suppressed 
facts within his knowledge at the holding of a former 
court (s). The like law holds if a county court judge 
commits a party without jurisdiction, and being informed 
of the facts which show that he has no jurisdiction (t) ; 
though an inferior judge is not liable for an act which on 
the facts apparent to him at the time was within his 
jurisdiction, but by reason of facts not then shown was in 
truth outside it (u), 

A judge is not liable in trespass for want of jurisdic- 
tion, unless he knew or ought to haye known of the defect; 
and it lies on the plaintiff, in every such case, to prove that 
fact (x). And the conclusion formed by a judge, acting 
judicially and in good faith, on a matter of fact which it 
is within his jurisdiction to determine, cannot be disputed 
in an action against him for anything judicially done by 
him in the same cause upon the footing of that con- 
clusion (y). 

Allegations that the act complained of was done '^ mali- 
ciously and corruptly," that words were spoken " falsely 
and maliciously," or the like, will not serve to make an 
action of this kind maintainable against a judge either of 
a superior (s) or of an inferior (a) court. 

(«) mUis V. Maehchlan (1876) 1 0. B. N. 8. 623, 31 L. J. C. P. 

Ex. D. 376, 45 L. J. Q. B. 689. 158 (an action againBt the Yice- 

(0 Houlim T. £miM (1850) 14 GhanoeUor of the Unirersiiy of 

Q. B. £41, 19 L. J. Q. B. 170. Oamfaridge), and authoritiee there 

(u) Lowther y. Earl of Radnor oited. 
(1806) 8 East 113, 118. (z) Fray y. Blaekhum (1862) 8 

(x) Caider y. Salket (1839) 3 B. & S. 576. 
Moo. P. G. 28, 78. (a) SeoU y. Sian^ld (1868) L. 

(y) Kemp y. NevilU (1861) 10 B. 3 Ex. 220, 37 L. J. Ex. 155. 



106 



GENERAL EXCEPTIONS. 



LiAbilitf 
by statute 
in speoiBl 
cases. 



Jadioial 
acta of 
peraoDfl 
not 
judges. 



There are two oases in whioh bj statute an aotion does 
or did lie against a judge for misoonduct in his offioe, 
namely, if he refuses to grant a writ of habeas cotyus in 
vaoation time (6), and if he refused to seal a bill of 
exceptions (c). 

The rule of immunity for judicial acts is applied not 
only to judges of the ordinary civil tribunals, but to 
members of naval and military courts-martial or courts of 
inquiry constituted in accordance with military law and 
usage (d). It is also applied to a limited extent to arbi- 
trators, and to any person who is in a position like an 
arbitrator's, as having been chosen by the agreement of 
parties to decide a matter that is or may be in difierenco 
between them. Such a person, if he acts honestly, is not 
liable for errors in judgment (e). He would be liable for 
a corrupt or partisan exercise of his o£Sce ; but if he really 
does use a judicial discretion, the rightness or competence 
of his judgment cannot be brought into question for the 
purpose of making him personally liable. 

The doctrine of our courts on this subject appears to be 
fully and uniformly accepted in the United States (/). 



(b) 31 Car. II. o. 2, s. 9. 

(e) 13 Edw. I. (Stat. Westm. 2) 
o. 31 1 of. Blackstone, iii. 372. 

{d) This may be collected from 
snch authorities as Dawkint v. 
LordRokeby (1876) L. R. 7 H. L. 
744, 45 L. J. Q. B. 8; Daxckint 
T. Frinee Edward of Saxe Weimar 
(1876) 1 Q. B. D. 499, 46 L. J. 
Q. B. 567, which however go to 
some extent on the doctrine of 
" privileged communications/' a 
doctrine wider in one sense, and 
more special in another sense, than 
the rule now in question. Partly, 
also, thej deal with acts of autho- 



rity not of a judicial kind, which 
will be mentioned presently. 

(e) Fappa v. Rom (1872) Ex. Ch. 
L. R. 7 0. P. 525, 41 L. J. O. P. 
187 (broker authorized by sale note 
to decide on quality of goods) ; 
Tharsit Sulphur Co, v. Loftus (1872) 
L. R. 8 C. P. 1, 42 L. J. C. P. 6 
(average adjuster nominated to 
ascertain proportion of loss as be- 
tween ship and cargo) ; Stevenson 
V. Watton (1879) 4 0. P. D. 148, 
48 L. J. C. P. 318 (architect nomi- 
nated to certify what was due to 
contractor). 

(/) Cooley on Torts, CJh. 14. 



EXECUTIVE ACTS. 107 

3. — Executive Acta. 

As to exeoutive acts of public officers, no legal wrong Executive 
can be done by the regular enforoement of any sentence or "^ 
prooess of law, nor by the necessary use of force for pre- 
serving the peace. It will be observed that private persons 
are in many cases entitled, and in some bound, to give aid 
and assistance, or to act by themselves, in executing the 
law; and in so doing they are similarly protected {ff). 
Were not this the rule, it is evident that the law could not 
be enforced at all. But a public officer may err by going 
beyond his authority in various ways. When this happens 
(and such cases are not uncommon), there are distinctions 
to be observed. The principle which runs through both 
common law and legislation in the matter is that an officer 
is not protected from the ordinary consequence of unwar- 
ranted acts which it rested with himself to avoid, such as 
using needless violence to secure a prisoner; but he is 
protected if he has only acted in a manner in itself 
reasonable, and in execution of an apparently regular 
warrant or order which on the face of it he was bound to 
obey (A). This applies only to irregularity in the process 
of a court having jurisdiction over the alleged cause. 
Where an order is issued by a court which has no juris- 
diction at all in the subject-matter, so that the proceedings 
are, as it is said, "coram non judice,'' the exemption 
ceases (i). A constable or officer acting imder a justice's 
warrant is, however, specially protected by statute, not- 
withstanding any defect of jurisdiction, if he produces 

(ff) The details of this sabjeot same iraj in the United States. 

belong to criminal law. Cooley on Torts, 459—462. 

(A) Mayor of London Y. Coj; (1867) (t) The case of The Mar$haUea, 

L. R. 2 H. L. at p. 269 (in opinion 10 CJo. Rep. 76 a ; Clark v. JFooda 

of judges, per WiUes J.). The (1848) 2 Ex. 896, 17 L. J. M. 0. 

law seems to be understood in the 189. 



108 GENERAL EXCEPTIONS. 

the warrant on demand (A:). The provisions of manj 
partioular statutes which gave a qualified protection to 
persons acting under the statute have been superseded by 
the Public Authorities* Protection Act. 1 893, which sub- 
stitutes for their various requirements the one rule that 
proceedings against any person for any act done in execu- 
tion of a statutory or other public duty shall be commenced 
within six months (/). 

As to a mere mistake of fact, such as arresting the body 
or taking the goods of the wrong person, an officer of the 
law is not excused in such a case. He must lay hands on 
the right person or property at his peril, the only excep- 
tion being on the principle of estoppel, where he is misled 
by the party's own act (m). 

Acts of Acts done by naval and military officers in the execution 

mlHtaiT ^^ intended execution of their duty, for the enforcement of 
officers. ^]^Q rules of the service and preservation of discipline, fall 
to some extent under this head. The justification of a 
superior officer as regards a subordinate partly depends on 
the consent implied (or indeed expressed) in the act of a 
man's joining the service that he will abide by its regula- 
tions and usages ; partly on the sanction expressly given 
to military law by statutes. There is very great weight of 
opinion, but no absolute decision, that an action does not 
lie in a dvil court for bringing an alleged offender against 
military law (being a person subject to that law) before a 

(k) 24 Geo. II. c. 44, b. 6. (Ac- (m) See OUutpooU v. Young (1829) 

tion lies only if a demand in 9 B. & C. 696; BtUtnt t. HtUton 

-writiDg for perusal and oopj of Ex. Gh. (1833) 9 Bing. 471 ; Bun- 

the warrant is refused or neglected 9Um ▼. FaUrmn (1867) 2 C. B. N. S. 

for six days.) 496, 26 L. J. C. P. 267 ; and other 

(I) 66 & 67 Vict. 0. 61. There authorities ooUeoted in Fisher's 

are subsidiary but not unimportant Digest, ed. Mews, tub tit. Sheriff, 
provisions as to ooets. 



NAVAL AND MILITARY DISCIPLINE. 



109 



court-martial without probable cause (n). How far the 
orders of a superior officer justify a subordinate who obeys 
them as against third persons has never been fully settled. 
But the better opinion appears to be that the subordinate 
is in the like position with an officer executing an appa- 
rently regular civil process, namely, that he is protected 
if he acts under orders given by a person whom he is 
generally bound by the rules of the service to obey, and of 
a kind, which that person is generally authorized to give, 
and if the particular order is not necessarily or manifestly 
unlawful (o). 

The same principles apply to the exemption of a person Of other 
acting under the orders of any public body competent in authori- 
the matter in hand. An action does not lie agcdnst the 
Serjeant-at-arms of the House of Commons for excluding 
a member from the House in obedience to a resolution of 
the House itself ; this being a matter of internal discipline 
in which the House is supreme {p). 

The principles of English law relating to the protection Indian 
of judicial officers and persons acting under their orders xvin. of 
have in British India been declared by express enactment ^^^^' 
(Act XVni. of 1850). 



(n) JohtuUmi Y. Suttw (1786-7) 
Ex. Gh. 1 T. R. 610, 548 ; affirmed 
in H. L. ibid. 784, 1 Bro. P. C. 76, 
1 B. R. 267. The Ex. Gh. thought 
the fiction did not lie, but the de- 
fendant -was entitled to judgment 
even if it did. No reasons appear 
to have been given in the House of 
Lords. 

(0) See per Willes J. in Keighly 
T. Bell (1866) 4 F. ft F. at p. 790. 
In time of war the protection maj 
perhaps be more eztensiTe. As to 



criminal responsibilitjin such cases, 
cf . Stephen, Dig. Gr. Law, art. 202, 
Hist. Gr. Law, i. 200—206. 

{p) Bradlaugh v. Oottett (1884) 
12 Q. B. D. 271, 63 L. J. Q. B. 
209. As to the limits of the priyi- 
lege, see per Stephen J. at p. 283. 
As to the power of a colonial 
legislatiye assembly over its own 
members, see Barton t. Taylor (J. 
G. 1886) 11 App. Ga. 197, 66 L. J. 
P. G. 1. 



110 QENERAL EXCEPTIONS. 

4. — Quaat'judiaal Acts. 

Acts of Divers persons and bodies are callei upon, in the 

ju^ial management of public institutions or government of 
discretion, voluntary associations, to exercise a sort of conventional 
jurisdiction analogous to that of inferior courts of justice. 
These quasi-judicial functions are in many cases created or 
confirmed by Parliament. Such are the powers of the 
f imiversities over their officers and graduates, and of col- 
* leges in the universities over their fellows and scholars, 
and of the General Council of Medical Education over 
registered medical practitioners (q). Often the authority 
of the quasi-judicial body depends on an instrument of 
foundation, the provisions of which are binding on all 
persons who accept benefits under it. Such are the cases 
of endowed schools and religious congregations. And the 
same principle appears in the constitution of modem in- 
corporated companies, and even of private partnerships. 
Further, a quasi-judicial authority may exist by the mere 
convention of a number of persons who have associated 
themselves for any lawful purpose, and have entrusted 
powers of management and discipline to select members. 
The committees of most clubs have by the rules of the 
club some such authority, or at any rate an initiative in 
presenting matters of discipline before the whole body. 
The Inns of Court exhibit a curious and unique example 
of great power and authority exercised by voluntary un- 
incorporated societies in a legally anomalous manner. 
Their powers are for some purposes quasi- judicial, and yet 
they are not subject to any ordinary jurisdiction (r). 

(q) BeeAllhuUr. General Council, General Council, ^e. (1890) 25 Q. B. 

^. (1889) 23 Q. B. Div. 400, 68 Div. 90, 69 L. J. Q. B. 476. 

L. J. Q. B. 606 ; Zeeean y. General (r) See Neate t. Denman (1874) 

Council, ^. (1889) 43 Gh. Div. 866, 18 £q. 127. 
69 L. J. Ch. 233; Cartridge y. 



QUASI-JUDICIAL POWERS. 



Ill 



The general rule as to quasi-judicial powers of this class Hnles of 
is that persons exercising them are protected from civil justioeand 
liability if they observe the rules of natural justice, and ^^^ 
also the particular statutory or conventional rules, if any, ^ ^7* 

,, must be 

which may prescribe their course of action. The rules of observed, 
natural justice appear to mean, for this purpose, that a 
man is not to be removed from office or membership, or 
otherwise dealt with to his disadvantage, without having 
fair and sufficient notice of what is alleged against him, 
and an opportunity of making his defence ; and that the 
decision, whatever it is, must be arrived at in good fcdth 
with a view to the common interest of the society or 
institution concerned. If these conditions be satisfied, 
a court of justice will not interfere, not even if it thinks 
the decision was in fact wrong («). If not, the act com- 
plained of will be declared void, and the person affected 
by it maintained in his rights until the matter has been 
properly and regularly dealt with {t). These prindples 
apply to the expulsion of a partner from a private firm 



[a) Inderwiek y. Snetl (1850) 2 
Mao. & G-. 216 (remoyal of a direc- 
tor of a company) ; Dawkint t. 
Antrobus (1881) 17 Ch. Div. 615 
(expulsioii of a member from a 
club) ; cf . 13 Ch. D. 352 ; Partridge 
Y. General Council^ ^e,, note {q) last 
page, although no notice was 
given, the council honestly think- 
ing they had no option. In the 
case of a club an injunction will 
be granted only in respect of the 
member's right of property, there- 
fore where the club is proprietaiy 
the only remedy is in damages : 
JBaird y. JFells (1890) 44 Ch. D. 
661, 69 L. J. Ch. 673. As to 
objectionfl against a member of a 



< * domestic tribunal ' ' on the ground 
of interest, Allinton y. General 
Council, ^., '94, 1 Q. B. 760, 9 R. 
(March) 205, C. A. 

(0 Finher y. Keane (1878) 11 Ch. 
i). 363, 49 L. J. Ch. 11 (a club 
case, no notice to the member); 
Labouehere v. Whamcliffe (1879) 13 
Ch. D. 346 (the like, no sufficient 
inquiry or notice to the member, 
calling and proceedings of general 
meeting irregular) ; Dean y. Bennett 
(1870) 6 Ch. 489, 40 L. J. Ch. 452 
(minister of Baptist chapel under 
deed of settlement, no sufficient 
notice of specific charges either to 
the minister or in calling special 
meeting). 



112 



GENERAL EXCEPTIONS. 



Abeolute 
disore- 
tionaiy 
powers. 



Qaestiona 

whether 

duty 

judicial 

or miniB- 

terial: 

AMy ▼. 
WhiU, fe. 



where a power of expulsion is ootif erred by the pariaiership 
contract (?«). 

It may be, however, that by the authority of Parliament 
(or, it would seem, by the previous agreement of the party 
to be affected) a governing or administrative body, or the 
majority of an association, has power to remove a man 
from office or the like without anything in the nature of 
judicial proceedings, and without showing any cause at all. 
Whether a particular authority is judicial or absolute must 
be determined by the terms of the particular instrument 
creating it {v). 

On the other hand there may be question whether the 
duties of a particular office be quasi- judicial, or merely 
ministerial, or judicial for some purposes and ministerial 
for others. It seems that at common law the retumiug or 
presiding officer at a parliamentary or other election has 
a judicifid discretion, and does not commit a wrong if by an 
honest error of judgment he refuses to receive a vote (x) : 
but now in most cases it will be found that such officers 
are under absolute statutory duties (y), which they must 
perform at their peril. 



(«) BlUtet T. Daniel (1853) 10 
Ha. 493; JFood v. JFoad (1874) 
L. R. 9 Ex. 190, 43 L. J. Ex. 190. 
Without an express power in the 
articles a partner cannot be ex- 
pelled at all. 

(r) £. ff. Dean y. Bennett^ note (/) 
last pagfe; Fisher v. Jaekton^ '91, 
2 Ch. 84, 60 L. J. Ch. 482 (power 
judicial) ; Hayman v. Govemort of 
Rugby School (1874) 18 £q. 28, 43 
L. J. Ch. 834 (power absolute). 

{x) Tozer v. Child (1857) Ex. Ch. 
7 E. & B. 377, 26 L. J. Q. B. 151, 
explaining Athby y. White^ Ld. 



Kaym. 938, and in 1 Sm. L. C. ; 
and see the special report of Holt's 
judgment published in 1837 and re- 
ferred to in Tozer y. Child. There 
is some difierence of opinion in 
America, see Cooley on Torts, 413, 
414. 

(y) 6 & 7 Vict. c. 18, s. 82. As 
to presiding officers under the 
Ballot Act, 1872, Pickering y. Jamee 
(1873) L. R. 8 C. P. 489, 42 L. J. 
0. P. 217; AckertY. Howard [\^%^) 
16 Q. B. D. 739, bb L. J. Q. B. 
273. 



DOMESTIC AUTHORITY. 



113 






5. — Parental and quasi-parental Authority/, 

Thus much of private quad-judioial authority. There Authority 
are also several kinds of authority in the way of summary ^j^ per- 
force or restraint which the necessities of society require to ^^\^^J^^ 
be exercised by private persons. And such persons are 
protected in exercise thereof, if they act with good faith 
and in a reasonable and moderate manner. Parental 
authority (whether in the hands of a father or guardian, 
or of a person to whom it is delegated, such as a school 
master) is the most obvious and universal instance (z). It 
is needless to say more of this here, except that modem 
civilization has considerably diminished the latitude of 
what judges or juries are likely to think reasonable and 
moderate correction (a). 

Persons having the lawful custody of a lunatic, and Of ousto- 
those acting by their direction, are justified in using such iimaticB, 
reasonable and moderate restraint as is necessary to prevent ^^' 
the lunatic from doing mischief to himself or others, or 
required, according to competent opinion, as part of his 
treatment. This may be regarded as a quasi-paternal 
power; but I conceive the person entrusted with it is 
bound to use more diligence in informing himself what 
treatment is proper than a parent is bound (I mean, can 
be held bound in a court of law) to use in studying the 
best method of education. The standard must be more 



(s) BlAokBtone,i.452. See modem 
examples collected in AddiBon on 
Torts, 7tli ed. p. 145. A school- 
master's delegated authority is not 
bounded by the walls of the school : 
Cleary t. Booth, *93, 1 Q. B. 466, 
62 L. J. M. C. 87, 6 B. 263. 

(a) The ancient right of a hus- 
band to beat his wife moderately 
(F. N. B. 80 F. 239 A.) was dis- 

P. 



credited by Blackstone (i. 446) and 
is not recognized at this day ; but 
as a husband and wife cannot in 
any case sue one another for assault 
in a civil court, this does not con- 
cern us. As to imprisonment of a 
wife by a husband, Reg. y. Jaekton, 
'91, 1 Q. B. 671, 60 L. J. Q. B. 346, 
O.A. 



114 GENERAL EXCEPTIONS. 

Btriot as medical science improves. A century ago lunatics 
were beaten, confined in dark rooms, and the like. Such 
treatment could not be justified now, though then it would 
have been unjust to hold the keeper criminally or civilly 
liable for not having more than the current wisdom of 
experts. In the case of a drunken man, or one deprived 
of self-control by a fit or other accident, the use of mode- 
rate restraint, as well for his own benefit as to prevent him 
from doing mischief to others, may in the same way be 
justified. 



6. — Authorities of Necessity, 
Of the The master of a merchant ship has by reason of necessity 

IXlB8t6r of • • • 

a ship. the right of using force to preserve order and disciphne 
for the safety of the vessel and the persons and property 
on board. Thus, if he has reasonable cause to believe that 
any sailor or passenger is about to raise a mutiny, he may 
arrest and confine him. The master may even be justified 
in a case of extreme danger in infiicting punishment with- 
out any form of inquiry. But "in all cases which will 
admit of the delay proper for inquiry, due inquiry should 
precede the act of punishment; and .... the party 
charged should have the benefit of that rule of universal 
justice, of being heard in his own defence" {b). In fact, 
when the immediate emergency of providing for the safety 
and discipline of the ship is past, the master's authority 
becomes a quasi-judicial one. There are conceivable cir- 
cumstances in which the leader of a party on land, such as 
an Alpine expedition, might be justified on the same prin- 
oiple in exercising compulsion to assure the common safety 

(h) Lord StoweU, Th$ Agineourt on the subjeot. For farther refer- 
(1824) 1 Hagg. 271, 274. Thia enoes see Ifande and Pollock's 
judgment is the dassical authority Merchant Shipping, 4th ed. i. 127. 



ACTS AUTHOBIZED BY STATUTE. 115 

of the partj. But such a case, though not impossible, is 
not likely to oooor for decision. 



7. — Damage incident to authorized Acta. 

Thus far we have dealt with cases where some special Damage 
relation of the parties justifies or excuses the intentional dentallj 
doing of things which otherwise would be actionable ^^^8^? 
wrongs. We now come to another and in some respects a {^^^"^" 
more interesting and difficult category. Damage suffered 
in consequence of an act done by another person, not for 
that intent, but for some other purpose of his own, and not 
in itself unlawful, may for various reasons be no ground of 
action. The general precept of law is commonly stated to 
be '^ Sic utere tuo ut alienum non laedas." If this were 
literally and universally applicable, a man would act at his 
peril whenever and wherever he acted otherwise than as 
the servant of the law. Such a state of things would be 
intolerable. It would be impossible, for example, to build 
or repair a wall, unless in the middle of an uninhabited 
plain. But the precept is understood to be subject to large 
exceptions. Its real use is to warn us against the abuse of 
the more popular adage that '* a man has a right to do 
as he likes with his own" {c)^ which errs much more 
dangerously on the other side. 

There axe limits to what a man may do with his own ; 
and if he does that which may be harmful to his neighbour, 
it is his business to keep within those limits. Neither the 
Latin nor the vernacular maxim will help us much, how- 
ever, to know where the line is drawn. The problems 
raised by the apparent opposition of the two principles 

(c) Cf. GaiuB (D. 50, 17, de diy. reg. 65) : << NnlloB yidetnr dolo faoere, 
qui Buo iure utitor." 

i2 



Hft GENERAL EXCEPTIONS. 

must be dealt with each on its own footing. We say 
apparent ; for the law has not two objects, but one, that is^ 
to secure men in the enjoyment of their rights and of 
their due freedom of action. In its most general form, 
therefore, the question is, where does the sphere of a man's 
proper action end, and aggression on the sphere of his 
neighbour's action begin P 

Damagpe The solution is least difficult for the lawyer when the 
outionof question has been decided in principle by a sovereign 
worloL" legislature. Parliament has constantly thought fit to 
direct or authorize the doing of things which but for that 
direction and authority might be actionable wrongs. Now 
a man cannot be held a wrong-doer in a court of law for 
acting in conformity with the direction or allowance of the 
supreme legal power in the State. In other words '^ no 
action will lie for doing that which the Legislature has 
authorized, if it be done without negligence, although it 
does occasion damage to any one." The meaning of the 
qualification will appear immediately. Subject thereto, 
'* the remedy of the party who suffers the loss is confined 
to recovering such compensation " (if any) ^' as the Legis- 
lature has thought fit to give him" (d). Instead of the 
ordinary question whether a wrong has been done, there 
can only be a question whether the special power which 
has been exercised is coupled, by the same authority that 
created it, with a special duty to make compensation for 
incidental damage. The authorities on this subject are 
voluminous and discursive, and exhibit notable differences 
of opinion. Those differences, however, turn chiefly on 
the application of admitted principles to particular facts,. 

{d) Lord Blackbnm, OkldU r, 7 App. Ga. at p. 293 ; MtruyDockr 

Hvprietort of Bonn Rturvoir (1878) Trmteet t. Gibht (1864-6) L. B. 1 

3 App. Ga. at p. 466; CaUdonian H. L. at p. 112. 
It. Co. Y. JTalker's Tnuteti (1882) 



ACTS AUTHORIZED BY STATUTE. 



117 



and on the construction of particular enactments. Thus it 
lias been disputed whether the compensation given by 
statute to persons who are " injuriously afiEected " by 
authorized railway works, and by the same statutes de- 
prived of their common-law rights of action, was or was 
not co-extensive with the rights of action expressly or by 
implication taken away ; and it has been decided, though 
not without doubts and weighty dissent, that in some cases 
a party who has suffered material loss is left without either 
ordinary or special remedy (e). 

Apart from the question of statutory compensation, it is No action 
settled that no action can be maintained for loss or incon- avoidable 
venience which is the necessary consequence of an autho- **^' 
rized thing being done in an authorized manner. A person 
dwelling near a railway constructed under the authority of 
Parliament for the purpose of being worked by locomotive 
engines cannot complain of the noise and vibration caused 
by trains passing and repassing in the ordinary course of 
traffic, however unpleasant he may find it (/) ; nor of 
damage caused by the escape of sparks from the engines, 
if the company has used due caution to prevent such escape 
so far as practicable (^). So, where a corporation is 



{e) Hammertmith R. Co. y. Brand 
(1869) L. R. 4 H. L. 171, 38 L. J. 
Q. B. 266 ; A,'0, v. MetropoHian 
B. Co,, '94, 1 Q. B. 384, 9 R. Sept. 
262, G.A. 

(/) Eammerimith R, Co,y. Brand, 
last note, confirming and extending 
Rex T. Pea9e (1832) 4 B. & Ad. 30, 
where certain members and ser- 
yants of Uie Stockton and Dar- 
lington Railwaj Company were 
indicted for a nnisanoe to persons 
nsing a high road near and parallel 
to the railway. Lord Bramwell 



mnst have forgotten this authority 
when he said in the Gonrt of Appeal 
that Rex t. Pease was wrongly 
decided (6 Q. B. D. 601). 

(ff) VaugKan ▼. Taff Vale R, Co. 
(1860) Ex. Ch. 6 H. & N. 679, 29 
L. J. Ex. 247. See below in 
Ch. XII. So of noise made by 
pmnps in the authorized sinking of 
a shaft near a man's land or house: 
Harrison y. Southufork and VauxhaU 
Water Co,^ '91, 2 Ch. 409, 60 L. J. 
Ch. 630. 



118 



GENERAL EXCEPTIOKS. 



empowered to make a river navigable, it does not thereby 
become bound to keep the bed of the river clear beyond 
what is required for navigation, though an incidental 
result of the navigation works may be the growth of weedB 
and accumulation of silt to the prejudice of riparian 
owners (A). 

Care and But in Order to secure this immunity the powers 
Inquired Conferred by the Legislature must be exercised without 
of d^!f°"* negligence, or, as it is perhaps better expressed, with 
cretionary judmient and caution (t). For damage which could not 

powers. JO ^ \ / o ^ 

have been avoided by any reasonably practicable care on 
the part of those who are authorized to exercise the power, 
there is no right of action. But they must not do needless 
harm ; and if they do, it is a wrong against which the 
ordinary remedies are available. If an authorized railway 
comes near my house, and disturbs me by the noise and 
vibration of the trains, it may be a hardship to me, but it 
is no wrong. For the railway was authorized and made 
in order that trains might be run upon it, and without 
noise and vibration trains cannot be run at all. But if the 
compajiy makes a cutting, for example, so as to put my 
house in danger of falling, I shall have my action ; for 
they need not bring down my house to make their cutting. 
They can provide support for the house, or otherwise 
conduct their works more carefully. "When the company 



(h) Craeknell r. Corporation of 
Thetford (1869) L. R. 4 C. P. 629, 
88 L. J. 0. P. 363, dedded partly 
on the gfronnd that the corporation 
were not even entitled to enter on 
land -which did not belong to them 
to remove weeds, &c., for anjpnr- 
poBes beyond those of the naviga- 
tion. A rather similar ease, bat 
decided the other wa7 in the last 



resort on the oonstmotion of the 
particular statute there in question, 
is Oeddit V. Proprieiort of Bonn 
Setervoirf 3 App. Ca. 430. Crack' 
neWs COM seems just on the line ; 
cp. Biteoe v. O. JB. JZ. Co. below. 

(i) Per Lord Truro, X. ^ N. W. 
R. Co. Y. BradUy (1851) 8 Mao. «; 
a. at p. 341. 



AUTHORIZED WORKS. 119 

can oonstruct its works without injury to private rights, 
it is in general bound to do so "(A:). Henoe there is a 
material distinction between cases where the Legislature 
" directs that a thing shall at all events be done" (/), and 
those where it only gives a discretionary power with choice 
of times and places. Where a discretion is given, it must 
be exercised with regard to the common rights of others. 
A public body which is by statute empowered to set up 
hospitals within a certain area, but not empowered to set 
up a hospital on any specified site, or required to set up 
any hospital at aU, is not protected from liability if a 
hospital established under this power is a nuisance to the 
neighbours (m). And even where a particular thing is 
required to be done, the burden of proof is on the person 
who has to do it to show that it cannot be done without 
creating a nuisance (n). A railway company is authorized 
to acquire land within specified limits, and on any part of 
that land to erect workshops. This does not justify the 
company, as against a particular householder, in building 
workshops so situated (though within the authorized limits) 
that the smoke from them is a nuisance to him in the 
occupation of his house (o). But a statutory power to 
carry cattle by railway, and provide station yards and 
other buildings for the reception of cattle and other things 
to be carried (without specification of particular places or 
times) is incidental to the general purposes for which the 
railway was authorized, and the use of a piece of land as a 
cattle yard under this power, though such as would be a 

(*) BUeoe t. G. £. £. Co, (1878) (») Atlomey- General v. Gaslight 

16 Eq. 636. and Coke Co, (1877) 7 Ch. D. 217, 

(/) 6 App. Oft. 203. 221, 47 L. J. Gh. 534. 

(m) Metropolitan Aeylum Dittriet {o) Jtqfmohun Bote t. East India 

V. Hill (1881) 6 App. Ca. 193 ; -B. Co. (High Courfc, Galonita), 10 

cp. Rapier y. London Tramways Co,, Ben. L. R. 241. Qu, whether this 

'93, 2 Gh. 688, 63 L. J. Oh. 36, be oonsUtent with the case next 

2R. 448. cited. 



120 GENERAL EXCEPTIONS. 

nuiaanoe at common law, does not give any right of action 
to adjoining occupiers (p). Such a case falls within the 
principle not of Metropolitan Asylum District t. Hill^ but 
of Rex V. Pease, 

A gas company was authorized by statute to have its 
pipes laid under certain streets, and was required to supply 
gas to the inhabitants. The vestry, being charged by 
statute with the repair of the streets, but not required or 
authorized to use any special means, used steam rollers 
of such weight that the company's pipes were often 
broken or injured by the resulting pressure through the 
soil. It was held that, even if the use of such rollers was 
in itself the best way of repairing the streets in the interest 
of the ratepayers and the public, the act of the vestry was 
wrongful as agcunst the gas company, and was properly 
restrained by injunction {q). 

^' An Act of Parliament may authorize a nuisance, and 
if it does so, then the nuisance which it authorizes may be 
lawfully committed. But the authority given by the Act 
may be an authority which falls short of authorizing a 
nuisance. It may be an authority to do certain works 
provided that they can be done without causing a nuisance, 
and whether the authority falls within that category is 
again a question of construction. Again the authority 
given by Parliament may be to carry out the works with- 
out a nuisance, if they can be so carried out, but in the 
last resort to authorize a nuisance if it is necessary for the 
construction of the works" (r). 

{p) London and Brighton £. Co, 414. The Court also relied, but 

y. Truman (1885) 11 App. Ca. 46, onlj by waj of oonfirmaiion, on 

55 L. J. Ch. 354, reversing the certain special Acta dealing i?ith 

decision of the Court of Appeal, the relations between the yestry 

29 Ch. Biy. 89. and the company. See 15 Q. B. D. 

(q) Oat Light and Coh Co, y, at p. 6. 

Vestry qf St. Mary Abbotfs (1886) (r) Bowen L. J., 29 Ch. D. at 

16 Q. B. Diy. 1, 64 L. J. Q. B. p. 108. 



INEVITABLE ACaDENT. 12l 

An authority accompanied by compulsory powers, or to 
be exercised concurrently with authorities ejusdem generis 
which are so accompanied, will, it seems, be generally 
treated as absolute ; but no single test can be assigned as 
decisive («). 



8. — Inevitable Accident 

In the cases we have just been considering the act by Inevitable 
which the damage is caused has been specially authorized, rosuiting 
Let us now turn to the class of cases which differ from ^"jjjjf ^* 
these in that the act is not specially authorized, but is 
simply an act which, in itself, a man may lawfully do 
then and there ; or (it is perhaps better to say) which he 
may do without breaking any positive law. We shall 
assume from the first that there is no want of reasonable 
care on the actor's part. For it is undoubted that if by 
failure in due care I cause harm to another, however in- 
nocent my intention, I am liable. This has already been 
noted in a general way {t). No less is it certain, on the 
other hand, that I am not cmswerable for mere omission to 
do anything which it was not my specific duty to do. 

It is true that the very fact of an accident happening is 
commonly some evidence, and may be cogent evidence, 
of want of due care. But that is a question of fact, and 
there remain many cases in which accidents do happen 
notwithstanding that all reasonable and practicable care is 
used. Even the *' consummate care " of an expert using 
special precaution in a matter of special risk or importance 
is not always successful Slight negligence may be divided 
by a very fine line from unsuccessful diligence. But the 
distinction is real, and we have here to do only with the 

(<) See espedallj Lord Blaok- Brighton JSt. Co. v. Truman, 
bmn's opinion in London and {t) P. 32, aboTe. 



'<'^ 



122 GENERAL EXCEPTIONS. 

doss of oases where the facts are so gi?en or determined as 
to exclude any negligence whatever. 

Conditions The question, then, is reduced to this, whether an action 

of the , , 

inquixy. lies against me for harm resulting hj inevitable accident 
from an act lawful in itself, and done by me in a reason- 
able and careful manner. Inevitable accident is not a 
verballj accurate term, but can hardly mislead ; it does 
not mean absolutely inevitable (for, by the supposition, I 
was not bound to act at all), but it means not avoidable 
by any such precaution as a reasonable man, doing such 
an act then and there, could be expected to take. In the 
words of Chief Justice Shaw of Massachusetts, it is an 
accident such as the defendant could not have avoided 
by use of the kind and degree of care necessary to the 
exigency, and in the circumstances, in which he was 
placed. 

On prin- It may seem to modem readers that only one solution 
accident of the problem thus stated is possible, or rather that there 
SabiStj! ^ ^^ problem at all (w). No reason is apparent for not 
accepting inevitable accideilt as an excuse. It is true that 
we may suppose the point not to have been considered at 
all in an archaic stage of law, when legal redress was but 
a mitigation of the first impulse of private revenge. But 
private revenge has disappeared from our modem law ; 
moreover we do not nowadays expect a reasonable man to 
be angry without inquiry. He will not assume, in a case 
admitting of doubt, that his neighbour harmed him by 
design or negligence. And one cannot see why a man is 
to be made an insurer of his neighbour against harm which 

(tf) This, at any rate, is the yiew p. 256, 46 L. J. Ex. 174; Eolmet 
of modem juries ; see Nichols t. t. Mather, L. R. 10 Ex. at p. 262. 
Martland (1875) L. B. 10 Ex. at 



INEVITABLE ACCIDENT. 



123 



(by onr hypothesis) is no fault of his own. For the doing 
of a thing lawful in itself with due care and caution 
cannot be deemed any fault. If the stick which I hold in 
my hand, and am using in a reasonable manner and with 
reasonable care, hurts my neighbour by pure accident, it 
is not apparent why I should be liable more than if the 
stick had been in another man's hand (v). If we go far 
back enough, indeed, we shall find a time and an order of 
ideas in which the thing itself that does damage is pri- 
marily liable, so to speak, and through the thing its owner 
is made answerable. That order of ideas was preserved in 
the noxal actions of Boman law, and in our own criminal 
law by the forfeiture of the offending object which had 
moved, as it was said, to a man's death, under the name 
of deodand. But this is matter of history, not of modem 
legal policy. So much we may concede, that when a 
ma n's act is the a pparent cause of Tm'gpln'ft4^^ the .burden of 
proof is on him to show that the consequence was not one 
which by due diligence he OQuld hare 4jreyented {z). But 
so does (and must) the burden of proving matter of justi- 
fication or excuse fall in every case on the person taking 
advantage of it. If he were not, on the first impression of 
the facts, a wrong-doer, the justification or excuse would 
not be needed. 



(v) Trespaflfl for assault by strik- 
ing the plaintifl with a stick 
thrown "by the defendant. Plea, 
not gwlty. The jory were di- 
rected that, in the absence of 
evidence for what purpose the 
defendant threw the stick, they 
might conclude it was for a proper 
purpose, and the striking the 
plaintiff was a mere accident for 
which the defendant was not 
answerable: Alderton t. WaitttU 



(1844) 1 C. & E. 358 (before Bolfe 
B.). This, if it could be accepted, 
would prove more than is here 
contended for. But it is evidentiy 
a rough and ready summing-up 
given without reference to the 
books. 

{x) Shaw C. J. would not con- 
cede even this in the leading Mas- 
sachusetts case of Brown v. Kendall, 
6 Cush. at p. 297. 



124 



GENERAL EXCEPTIONS. 



ooimiot of 
authori- 
ties. 



We believe that our modem law supports the view now 
indioated as the rational one, that inevitable aocident is 
not a ground of liabUitj. But there is a good deal of 
appearance of authority in the older books for the contrary 
proposition that a man must answer for all direct conse- 
quences of his voluntary acts at any rate, or as Judge 
0. W. Holmes (y) has put it "acts at his peril." Such 
seems to have been the early Germanic law (s), and such 
was the current opinion of English lawyers until the begin- 
ning of this century, if not later. On the other hand, it 
will be seen on careful examination that no actual decision 
goes the length of the dicta which embody this opinion. 
In almost every case the real question turns out to be of 
the form of action or pleading. Moreover, there is no 
such doctrine in Eoman or modem Continental juris- 
prudence (a) ; and this, although for us not conclusive or 
even authoritative, is worth considering whenever our own 
authorities admit of doubt on a point of general principle. 
And, what is more important for our purpose, the point 
has been decided in the sense here contended for by Courts 



(y) See on the whole of this 
matter Mr. Justice Holmes's chap- 
ter on ''Trespass and Negligence,'* 
and Hr. Wigmore's articles in 
Harr. Law Rev. Tii. 316, 383, 441, 
where materials are fully collected. 

(s) Heusler, Inst, des deutschen 
Privatrechts, ii. 263; li. Hen. 
Primi, c. 88 § 6, 90 § 11 ; seep. 129, 
below. 

(a) '*Inpunitus est qui sine culpa 
et dolo malo oasu quodam damnum 
oommitUt." Oai. 3. 211. Paulns 
indeed says (D. 9. 2, ad legem 
Aquiliam, 46, § 4), '* Si defendendi 
mei causa lapidem in adversarium 
misero, sed non eum sed prae- 
tereuntem peroussero, tenebor lege 



Aquilia; ilium enim solum qui 
Tim infert ferire conceditur." But 
various explanations of this are 
possible. Perhaps it shows what 
kind of cases are referred to by the 
otherwise unexplained dictum of 
Ulpian in the preceding fragment, 
'* in lege Aquilia et levissima culpa 
venit." Paulus himself says there 
is no iniuria if the master of a 
slave, meaning to strike the slave, 
accidentally strikes a free man: 
D. 47. 10, de iniuriis, 4. Accord- 
ing to the current English theory 
of the 16th — 18th centuries an 
action on the case would not lie on 
such facts, but trespass vi et amUi 
would. 



AMERICAN CASES ON ACaDENT* 123 

of the highest auUiority in the United States. To these 
deoifiions we shall first call attention. 

In TTie Nitro-glycerine Case (h) the defendants, a finn of Amerioan 
carriers, received a wooden case at New York to be earned j,f^^ jntro- 
to CaUfomia. " There was nothing in its appearance cal- ffh^*'^ 
cnlated to awaken anj suspicion as to its contents," and in 
fact nothing was said or asked on that score. On arrival 
at San Francisco it was found that the contents (which 
^'had the appearance of sweet oil") were leaking. The 
case was then, according to the regular course of business, 
taken to the defendants' offices (which thej rented from 
the plaintiff) for examination. A servant of the defen-* 
dants proceeded to open the case with a mallet and chisel. 
The contents, being in fact nitro-glycerine, exploded. 
All the persons present were killed, and much property 
destroyed and the building damaged. The action was 
brought by the landlord for this last-mentioned damage, 
including that suffered by parts of the building let to 
other tenants as well as by the offices of the defendants. 
Nitro-glycerine had not then (namely, in 1866) become a 
generally known article of commerce, nor were its pro- 
perties well known. It was found as a fact that the 
defendants had not, nor had any of the persons concerned 
in handling the case, knowledge or means of knowledge of 
its dangerous character, and that the case had been dealt 
with '^ in the same way that other cases of similar appear* 
ance were usually received and handled, and in the mode 
that men of prudence engaged in the same business would 
have handled cases having a similar appearance in the 
ordinary course of business when ignorant of their con- 
tents." The defendants admitted their liability as for 

{b) 16 WaU. 524 (1872). 



126 



GENERAL EXCEPTIOKS. 



waste 88 to the premises oocupied by them (which in fact 
they repaired as soon as possible after the aooident), but 
disputed it as to the rest of the building. 



Doctrine 
of Su- 
preme 
Court ; no 
liability 
for acci- 
dental 
result of 
lawful act 
without 
negli- 
gence. 



The Gironit Court held the defendants were not further 
liable than they had admitted, and the Supreme Court of 
the United States a£Srmed the judgment. It was held 
that in the first place the defendants were not bound to 
know, in the absence of reasonable grounds of suspicion, 
the contents of packages offered them for carriage: and 
next, that without such knowledge in fact and without 
negligence they were not liable for damage caused by the 
accident {c). ^* No one is responsible for injuries resulting 
from unavoidable accident, whilst engaged in a lawful 

business The measure of care against accident 

which one must take to avoid responsibility is that which 
a person of ordinary prudence and caution would use if his 
own interests were to be affected and the whole risk were 
his own.*' 



Brown t. 
Kendall 
(Massa- 
ehnsetts). 



The Court proceeded to cite with approval the case of 
Brawn v. Kendall in the Supreme Court of Massachu- 
setts {d). There the plaintiff's and the defendant's dogs 
were fighting: the defendant was beating them in order 
to separate them, and the plaintiff looking on. ''The 
defendant retreated backwards from before the dogs, 
striking them as he retreated ; and as he approached the 
plaintiff, with his back towards him, in raising his stick 
over his shoulder in order to strike the dogs, he accidentally 
hit the plaintiff in the eye, inflicting upon him a severe 



(e) The plaintiffs proper remedy 
would haye been against the con- 
signor who despatched the explosiye 
without informing the carriecB of 



its nature. See Lyell r. Oanpa Dai 
(1876) Indian Law Rep. 1 AIL 60. 
(<Q 6 Gush. 292 (1860). 



AMERICAN CASES ON ACCIDENT. 127 

injury." The action was trespaBS for assault and battery. 
It was held that the aot of the defendant in itself ^^ was a 
lawful and proper act which he might do by proper and 
safe means;" and that if ^^in doing this act, using due 
care and all proper precautions necessary to the exigency 
of the case to ayoid hurt to others, in raising his stick for 
that purpose, he accidentally hit the plaintiff in the eye and 
wounded him, this was the result of pure accident, or was 
involuntary and unavoidable (^), and therefore the action 
would not lie." All that could be required of the defen- 
dant was ^' the exercise of due care adapted to the exigency 
of the case." The rule in its general form was thus ex- 
pressed : *' If, in the prosecution of a lawful act, a casualty 
purely accidental arises, no action can be supported for an 
injury arising therefrom." 

There have been like decisions in the Supreme Courts of Other 
New York (/) and Oonnectieut. And these rulings ap- oases : 
pear to be accepted as good law throughout the United ^^^jj^ 
States (g). The general agreement of American authority <^^^ ▼• 
and opinion is disturbed, indeed, by one modem case in the (N. Y.). 
Court of Appeal of New York, that of Castle v. Duryee (A). 
But the conflicting element is not in the decision itself, 
nor in anything necessary to it. The defendant was the 
colonel of a regiment of New York militia, who at the 
time of the cause of action were firing blank cartridge 
under his immediate orders in the course of a review. 
The plaintiff was one of a crowd of spectators who stood 
in front of the firing line and about 350 feet from it. 



■ {e) The eomequmce was inTolnn- (/) Harvey y.Lunlap, Lalor 198, 

tary or rather Tmintended, though oited 16 Wall. 639 ; Morris y. If ait, 

the aot itself was voluntary ; and it 32 Conn. 75. 

was also unayoidable, i. e. not pre- (^) Gooley on Torts, 80. 

yentable by reasonable diligence. (h) 2 Keyee 169 (1866). 



128 GENERAL EXCEPTIONS. 

Upon one of the disoliarges the plaintiff was wounded hj 
a bullet, which oould be aooounted for only by one of the 
men's pieoes having by some misadventure been loaded 
with ball oartridge. It appeared that one company had 
been at target practice an hour or two before, and that at 
the end of the practice arms had been examined in the 
usual way (t), and surplus ammunition collected. More- 
over, arms had again been inspected by the commanding 
officers of companies, in pursuance of the colonel's orders, 
before the line was formed for the regimental parade. 
The plaintiff sued the defendant in an action ''in the 
nature of trespass for an assault." A verdict for the 
plaintiff was ultimately affirmed on appeal, the Court being 
of opinion that there was evidence of negligence. Knowing 
that some of the men had within a short time been in pos- 
session of ball ammunition, the defendant might well have 
done more. He might have cleared the front of the line 
before giving orders to fire. The Court might further have 
supported its decision, though it did not, by the cases which 
show that more than ordinary care, nay '' consummate 
caution " (/), is required of persons dealing with dangerous 
weapons. The Chief Judge added that, as the injury 
was the result of an act done by the defendant's express 
command, the question of negligence was immaterial. 
But this was only the learned judge's individual opinion. 
It was not necessary to the decision, and there is nothing 
to show that the rest of the Court agreed to it {k). 

(t) It will be remembered that M. & S. 198. 
this was in the days of muzzle- {k) The reporter adds this sig- 

loaders. A like aoddent, however , nificant note: <*The Court did 

happened not many years ago at not pass upon the first branch of 

an Aldershot field day, fortunately the case, discussed by the Chief 

without hurt to any one. Judge, as to the question of the 

(J) Erie C. J. obiter, in Potter y. general liability of the oommaod- 

Faulkner, 1 B. ft S. at p. 805, 31 ing officer." 
L. J. Q. B. 30 ; Dixon t. £ell, 6 



'V 



INEVITABLE ACCIDENT. 



129 



We may now see what the English authorities amount EngliBh 
to. They have certainly been supposed to show that ties; casea 
inevitable accident is no excuse when the immediate result ^d^SoH 
of an act is complained of. Erskine said a century ago in ^' 
his argument in the celebrated case of The Dean of 8t. 
Asaph (/) (and he said it by way of a familiar illustration 
of the difference between criminal and civil liability) that 
^' if a man rising in his sleep walks into a china shop and 
breaks everything about him, his being asleep is a complete 
answer to an indictment for trespass (m), but he must 
answer in an action for everything he has broken.'^ 
And Bacon had said earlier to the same purpose, that ^^ if 
a man be killed by misadventure, as by an arrow at butts, 
this hath a pardon of course: but if a man be hurt or 
maimed only, an action of trespass lieth, though it be done 
against the party's mind and will " (w). Stronger examples 
could not well be propounded. For walking in one's sleep 
is not a voluntary act at all, though possibly an act that 
might have been prevented : and the practice of archery 
was, when Bacon wrote, a positive legal duty under statutes 
as recent as Henry YIII.'s time, though on the other hand 
shooting is an extra-hazardous act (o). We find the same 
statement about accidents in shooting at a mark in the 
so-called laws of Henry I. (j?), and in the arguments of 



(/) 21 St. Tr. 1022 (a.d. 1783). 

(m) Would an indiotment ever 
lie for simple trespaM? I know 
not of any authority that it would, 
though the action of trespass ori- 
ginaUy had, and retained in form 
down to modem times, a public 
and penal character. 

(n) Maxims of the Law, Reg. 7, 
following the dictum of Rede J. in 
21 Hen. VII. 28. We cite Bacon, 
not as a writer of authority, but 

P. 



as showing, like Erskine, the 
average legal mind of his time. 

(o) O. W. Holmes 103. 

0?) 0. 88 § 6. ** Si qnis in ludo 
sagittandi vel alicnios exeroitii 
iacnlo Tel hniusmodi caftn aliqnem 
occidat, reddat eum ; leg^ enim 
est, qui inscienter peccat, scienter 
emendet." C. 90 { 11 adds an 
English form of the maxim: ''et 
qui brecht ungewealdes, bete 
gewealdes.*' 

K 



130 



GENERAL EXCEPTIONS. 



Weavir t. 
Ward. 



ooimsel in a oase in the Year-Book of Edward lY., where 
the general question was more or less discussed (7). Brian 
(then at the bar) gave in illustration a view of the law 
exactly contrary to that which wm taken in Brown' v. 
Kendall, But the decision was only that if A. outs his 
hedge so that the cuttings ipso invito fall on B.'s land, this 
does not justify A. in entering on B.'s land to carry them 
off. And by Choke, C. J., it is said, not that (as Brian's 
view would require) A. must keep his thorns from falling 
on B.'s land at all events, but that *' he ought to show that 
he could not do it in any other way, or that he did all that 
was in his power to keep them out." 

Another case usually cited is Weaver v. Ward (r). The 
plaintiff and the defendant were both members of a train- 
band exercising with powder, and the plaintiff was hurt 
by the accidental discharge of the defendant's piece. It 
is a very odd case to quote for the doctrine of absolute lia- 
bility, for what was there holden was that in trespass no 
man shall be excused, '* except it may be judged utterly 
without his fault ; " and the defendant's plea was held bad 
because it only denied intention, and did not properly 
bring before the Court the question whether the accident 
was inevitable. A later case («), which professes to follow 



(q) 6 Edw. IV. 7, pi. 18 ; O. W. 
Holmes 85 ; cf. 21 Hen VII. 27, 
pi. 6, a oase of trespass to goods 
which does not really raise the 
question. 

(r) Hob. 134, a.d. 1616. 

(») Lickeaon v. WaUon, Sir T. 
Jones 205, a.d. 1682. Lambert y. 
Beuey^ T. Baym. 421, a oase of 
false imprisonment in the same 
period, cites the foregoing autho- 
rities, and Raymond's opinion 
certainly assumes the yiew that 



inevitable accident is no excuse 
eyen when the aot is one of lawful 
self-defence. But then Raymond's 
opinion is a dissenting one ; #. e. 
nom. Bessey y. Olliott^ T. Raym. 
467 ; being given in the former 
place alone and without explana- 
tion, it has apparently been some- 
times taken for the judgment of 
the Court. At most, therefore, 
his iUustrations are evidence of the 
notions current at the time. 



INEVITABLE ACCIDENT. 131 

Weaver v. Wardy really departs from it in Holding that 
*^ unavoidable necessity " must be shown to make a valid 
excuse. This in turn was apparently followed in the 
neit century, but the report is too meagre to be of any 
value {t). 

All these, again, are shooting cases, and if they occurred 
at this day the duty of using extraordinary care with 
dangerous things would put them on a special footing. 
In the celebrated squib case they are cited and more or less 
relied upon {u). It is not clear to what extent the judges 
intended to press them. According to Wilson's report, 
inevitable accident was allowed by all the judges to be an 
excuse. But Blackstone's judgment, according to his own 
report, says that nothing but *' inevitable necessity " will 
serve, and adopts the argument of Brian in the case of the 
cut thorns, mistaking it for a judicial opinion ; and the 
other judgments are stated as taking the same line, though 
less explicitly. For the decision itself the question is 
hardly material, though Blackstone may be supposed to 
represent the view which he thought the more favourable 
to his own dissenting judgment. His theory was that 
liability in trespass (as distinguished from an action on 
the case) is unqualified as regards the immediate conse- 
quences of a man's act, but also is limited to such conse- 
quences. 

Then comes Leame v. Bray (a;), a comparatively modem Leam^Y 
case, in which thd defendant's chaise had run into the 

(0 Underwood t. Mewson, 1 law of uegligenoe was then qidte 

Strange 696, ▲.D. 1723 (defendant undeveloped. 

was nncocking a gnn, plaintiff (m) 8eoU t. Shepherd (1773) 2 W.l 

looking on). It looks Ter7 like Bl. 892, 3 Wils. 403. | 

oontribntory negligence, or at any {x) 3 East 693 (▲.!>. 1803), op. 

rate Toluntary exposnie to the risk, Preface to 7 B. K. at p. Tii. 
on the plaintiff'B part. But the 

k2 



182 



GENERAL EXCEPTIONS. 



plaintiff's ouniole on a dark night. The defendant was 
driviDg on the wrong side of the road ; which of itself is 
want of due oare, as every judge would now tell a jury as 
a matter of course. The decision was that the proper form 
of action was trespass and not case. Ghx)se J. seems to 
have thought inevitahle accident was no excuse, but this 
was extra-judicial. Two generations later, in Ry lands v. 
IHetchei'y Lord Cranworth inclined, or more than inclined, 
to the same opinion (y). Such is the authority for the 
doctrine of strict liability. Very possibly more dicta to 
the same purpose might be collected, but I do not think 
anything of importance has been left out (s). Although 
far from decisive, the weight of opinion conveyed by these 
various utterances is certainly respectable. 

Oaaes On the other hand we have a series of cases which 

exoeption appear even more strongly to imply, if not to assert, the 
allowed, contrary doctrine. A. and B. both set out in their vessels 
to look for an abandoned raft laden with goods. A. first 
gets hold of the raft, then B., and A.'8 vessel is damaged 
by the wind and sea driving B.'s against it. On such 
facts the Court of King's Bench held in 1770 that A. 
could not maintain trespass, '' being of opinion that the 
original act of the defendants was not unlawful" {a). 
Quite early in the century it had been held that if a man's 
horse runs away with him, and runs over another man, he 



(y) (1868) L. B. 3 H. L. at p. 
341. 

(s) Sometimes the caue of James 
T. Campbell (1832) 5 G. & P. 372, is 
(dted in this comiezion. But not 
onlj is it a Nisi Prius case with 
nothing particular to recommend 
it, but it is irreleyant. The facts 
there alleged were that A. in a 
quarrel with B. struck C. Nothing 



shows that A. would have been 
justified or excused in striking B. 
And if the blow he intended was 
not lawful it was clearly no excuse 
that he struck the wrong man 
(p. 29 aboye, and see S, ▼. Latimer 
(1886) 17 Q. B. D. 369, 65 L. J. 
M. C. 136). 

(a) Davie v. Saundert, 2 Chittj 
639. 



INEVITABLE ACCIDENT. 183 

is not even prima facie a trespasser, so that under the old 
rales of pleading it was wrong to plead specially in justifi- 
cation (5). Here however it may be said there was no 
voluntary act at all on the defendant's part. In Wakeman 
V. Rohimon^ a modern running-down case (c), the Court 
conceded that " if the accident happened entirely without 
default on the part of the defendant, or blame imputable 
to him, the action does not lie ; " thinking, however, that 
on the facts there was proof of negligence, they refused a 
new trial, which was asked for on the ground of mis- 
direction in not putting it to the jury whether the accident 
was the result of negligence or not. In 1842 this declara- 
tion of the general rale was accepted by the Court of 
Queen's Bench, though the decision again was on the form 
of pleading (d). 

Lastly, we have two decisions well within our own Eoime8Y.\ 
time which are all but conclusive. In BolmcH v. Mather (e) ^^^'^^' \ 



the defendant was out with a pair of horses driven by his 
groom. The horses ran away, and the groom, being 
unable to stop them, guided them as best he could ; at last 
he failed to get them clear round a comer, and they 
knocked down the plaintiff. If the driver had not 
attempted to turn the corner, they would have run straight 
into a shop-front, and (it was suggested) would not have 
touched the plaintiff at all. The jury found there was no 
negligence. Here the driver was certainly acting, for he 
was trying to turn the horses. And it was argued, on the 
authority of the old cases and dicta, that a trespass had 

(*) Q%bh(mt V. T^er^ 1 Lord (d) Hall y. FeamUy (1842) 3 

Raym. 38. Q. B. 919, 12 L. J. Q. B. 22. The 

{e) 1 Bing. 213 (1823). The line between this and Gibbons t, 
argument for the defendant seems Pepper is rather fine, 
to have been very well reasoned. {e) L. B, 10 Ex. 261, 44 L. J. 

Ex. 176 (1875). 



134 



GENERAL EXCEPTIONS. 



PowU, 



Oonola- 
Bion. 



been committed. The Court refused to take this view, 
but said nothing about inevitable acoident in general. 
" For the convenience of mankind in carrying on the 
affairs of life, people as they go along roads must expect, 
or put up with, such mischief as reasonable care on the 
part of others cannot avoid" (/). Thus it seems to be 
made a question not only of the defendant being free from 
blame, but of the accident being such as is incident to the 
ordinary use of public roads. The same idea is expressed 
in the judgment of the Exchequer Chamber in Rylands v. 
FktcheTy where it is even said that all the cases in which 
inevitable accident has been held an excuse can be ex- 
plained on the principle ''that the circumstances were 
such as to show that the plainti£E had taken that risk 
upon himself" {g). 

More lately, in Stanley v. Poicell (A), Denman J. came, 
on the English authorities alone, to the conclusion above 
maintained, namely that, where n egligence is negatived, 
an action does not lie for injury resulting by acoident from 
another s lawful act. 

These decisions seem good warrant for saying that the 
principle of The Nitro-glycerine Case and Brown v. Kendall 
is now part of the common law in England as well as in 
America. All this inquiry may be thought to belong not 
so much to the head of exceptions from liability as to the 
fixing of the principles of liability in the first instance. 
But such an inquiry must in practice always present itself 



(/) Biamwell B. at p. 267. 

(jgi) L. B. 1 Ex. at pp. 28G, 287. 
Bat see per Lord Halsbory in Smith 
y. Baker, *91, A. C. 325, 337, 60 
L. J. Q. B. 683. 

(A) '91, 1 Q. B. 86, 60 L. J. Q. B. 
62. Thiswasashootingoase (a pellet 



glanoed from a bongh and wounded 
the plaintifl*8 eye). A point might 
have been made for the plaintiff, 
but apparently was not, on the 
'* extra-hazardous " charaoter of 
fire-arms. 






EXERCISE OF RIGHTS. 196 

under the form of determining whether the particular (dr- 
onmstanoeB exclude liability for an act or consequence 
which is at first sight wrongful. The same remark ap- 
plies, to some extent, to the class of cases which we take 
next in order. 



in exercise 
common 



9. — Exercise of common Bights. 

We have just left a topic not so much obscure in itself Immnnitj 
as obscured by the indirect and vacillating treatment of it ^ 
in our authorities. That which we now take up is a well ^^^ 
settled one in principle, and the difficulties have been 
only in fixing the limits of application. It is impossible 
to carry on the common affairs of life without doing 
various things which are more or less likely to cause loss 
or inconvenience to others, or even which obviously tend 
that way ; and this in such a manner that their tendency 
cannot be remedied by any means short of not acting at 
all. Competition in business is the most obvious example. 
If John and Peter are booksellers in the same street, each 
of them must to some extent diminish the custom and 
profits of the other. So if they are shipowners employing 
ships in the same trade, or brokers in the same market. 
So if, instead of John and Peter, we take the three or four 
railway companies whose lines offer a choice of routes from 
London to the north. But it is needless to pursue ex- 
amples. The relation of profits to competition is matter of 
common knowledge. To say that a man shall not seek 
profit in business at the expense of others is to say that he 
shall not do business at all, or that the whole constitution 
of society shall be altered. like reasons apply to a man's 
use of his own land in the common way of husbandry, or 
otherwise for ordinary and lawful purposes. In short, life 
could not go on if we did not, as the price of our own free 



136 



GENERAL EXCEPTIONS. 



action, abide some measure of inoonvenienoe from the 
equal freedom of our neighbours. In these matters rmiam 
petim usque dammque vicissim. Hence the rule of law that 
the exercise of ordinary rights for a lawful p urpose and in 
a lawful manner is no wrong even if it causes damage (t). 
It is chiefly in this class of cases that we meet with the 
phrase or formula damnum sine iniuria ; a form of words 
which, like many other Latin phrases and maxims, is too 
often thought to serve for an explanation, when in truth 
it is only an abridgment or memoria technica of the things 
to be explained. It is also of doubtful elegance as a 
technical phrase, though in general Latin literature iniuria 
no doubt had a sufficiently wide meaning (A). In English 
usage, however, it is of long standing (/). 



(i) A.'G, T. Tomline (1880) 14 
Ch. Div. 68, 49 L. J. Ch. 877, is 
a curiouB caae, but does not make 
any real exception to this. It 
shows that (1) the Crown as owner 
of foreshore has duties for the pro- 
tection of the land, though not 
enforceable duties ; (2) those duties, 
where the Grown rights have be- 
come vested in a subject, are laid 
upon and may be enforced against 
that subject. 

[k) XJlpian wrote (D. 9. 1, si 
quadrupes, 1 1 § 3) • *' Pauperies est 
damnum sine iniuria fadentis 
datum, neo enim potest animal 
iniuria fecisse, quod sensu caret." 
This is in a very special context, 
and is far from warranting the 
iise of ** damnum sine iniuria" aa 
a common formula. Being, how- 
ever, adopted in the Institutes, 
4, 9, pr. (with the unidiomatic 
variant ** iniuriam fecisse "), it pro- 
bably became, through Azo, the 
origin of the phrase now current. 



In Gains 3. 21 1 (on the lex Aquilia) 
we read '* Iniuria autem oooidere 
inteUegitur cuius dolo aut culpa id 
acciderit, neo ulla alia lege dam- 
num quod sine iniuria datur repre- 
henditur." This shows that 
*' damnum sine iniuria dare " was 
a correct if not a common phrase : 
though it could never have for 
Gaius or XJlpian the wide meaning 
of "harm [of any kind] which 
gives no cause of action. " ** Dam- 
num sine iniuria" standing alone 
as a kind of compound noun, ac- 
cording to the modem use, is 
hardly good Latin. 

(/) Bracton says, fo. 221 a: <'Si 
quis in fundo proprio oonstruat 
aliquod molendinum, et sectam 
suam et aliorum vicinorum sub- 
trahat vicino, faoit vicino ^^Rmfinm 
et non iniuriam." "Dampnum 
sine ininria " occurs in 7 Ed. III. 
65, pi. 67, ** damnum absque 
iniuria" in 11 Hen. IV. 47, pi. 21 
(see below). 



4 



TRADE COMPETITION. 



137 



A daasical illustration of the rule is given by a ease in ThA oase 
the Tear-Book of Henry IV., which has often been cited ^J^"" 
in modem books, and which is still perfectly good autho- ^?°T" 
rity (m). The action was trespass by two masters of the 
Ghrammar School of Qloucester against one who had set up 
a school in the same town, whereby the plaintiffs, having 
been wont to take forty pence a quarter for a child's 
schooling, now got only twelve pence. It was held that 
such an action could not be maintained. ^^Damnum^^^ said 
Hankford J., ^^ may be absque iniuriay as if I have a mill 
and my neighbour build another mill, whereby the profit 
of my mill is diminished, I shall have no action against 
him, though it is damage to me ... . but if a miller dis- 
turbs the water from flowing to my mill, or doth any 
• nuisance of the like sort, I shall have such action as the 
law gives." If the plaintiffs here had shown a franchise 
in themselves, such as that claimed by the Universities, it 
might have been otherwise. 

A case very like that of the mills suggested by Hank- Case of 
ford actually came before the Court of Common Pleas a 
generation later (n), and Newton C. J. stated the law in 
much the same terms. Even if the owner of the ancient 
mill is entitled to sue those who of right ought to grind at 
his mill, and grind at the new one, he has not any remedy 
against the owner of the new mill. '*He who hath a free- 
hold in the vill may build a mill on his own ground, and 
this is wrong to no man." And the rule has ever since 



(m) HU. 11 Hen. IV. 47, pi. 21 
(▲.D. 1410-11). In the oonrse of 
argument the opinion is thrown 
ont that the education of children 
is a spiritual matter, and therefore 
the right of appointing a school- 
master cannot be tried by a tem- 



poral court. The plaintiff tried to 
set up a quaai franchise as holding 
an ancient office in the gift of the 
Prior of Lantone, near Gloucester 
(tie : probably Llanthony is meant) . 
(n) 22 Hen. VI. 14, pi. 23 (▲.d. 
144 3) . The school case is dted. 



138 GENERAL EXCEPTIONS. 

been treated as bejond question. Competition is in itself 
no ground of action, whatever damage it maj cause. A 
trader can complain of his rival only if a definite exclusive 
right, such as a patent right, or the right to a trade mark, 
is infringed, or if there is a wilful attempt to damage his 
business by injurious falsehood (^'slander of title") or acts 
otherwise unlawful in themselves. Underselling is not a 
wrong, though the seller maj purposely sell some article 
at unremunerative prices to attract custom for other 
articles; nor is it a wrong even to offer advantages to 
customers who will deal with oneself to the exclusion of a 
rival (o). 

** To say that a man is to trade freely, but that he is 
to stop short at any act which is calculated to harm other 
tradesmen, and which is designed to attract their business 
to his own shop, would be a strange and impossible counsel 
of perfection "(p). "To draw a line between fair and 
unfair competition, between what is reasonable and unrea- 
sonable, passes the power of the Courts. Competition 
exists where two or more persons seek to possess or to 
enjoy the same thing ; it follows that the success of one 
must be the failure of another, and no principle of law 
enables us to interfere with or to moderate that success or 
that failure so long as it is due to mere competition " (g). 
There is ''no restriction imposed by law on competition by 
one trader with another with the sole object of benefiting 
himself" (r). 

"DifKffiag Another group of authorities of the same class is that 
liLA m^'8 whicli establishes " that the disturbance or removal of the 

own land. 

(o) Mofful SUatmhip Co, y. at p. 615. 

McGregor (1889-91) 23 Q. B. Div. (q) Fry L. J., iUd, at pp. 625, 

598, affirmed in H. L.» '92, A. C. 626. 

26. ('*) Loid Hannen, $, e, in H. L. 

(p) Bowen L. J., 23 Q. B. Biv. '92, A. 0. at p. 69. 



Ik 



USB OF one's own LAND. 139 

soil in a man's own land, though it is the means (by 
process of natural percolation) of drying up his neighbour's 
spring or well, does not constitute the invasion of a legal 
right, and will not sustain an action. And further, that 
it makes no difference whether the damage arise by the 
water percolating away, so that it ceases to flow along 
channels through which it previously found its way to the 
spring or well ; or whether, having found its way to the 
spring or well, it ceases to be retained there "(«). The 
leading cases are Acton v. Blundellit) and Ckasemore v. 
RicJiarda {u). In the former it was expressly laid down as 
the governing principle *'that the person who owns the 
surface may dig therein, and apply all that \b there found 
to his own purposes, at his free will and pleasure, and that 
if in the exercise of such right he intercepts or drains off 
the water collected from undergroimd springs in his neigh- 
bour's well, this inconvenience to his neighbour falls 
within the description of damnum absque iniuria which 
cannot become the ground of an action." In this case the 
defendant had sunk a deep pit on his own land for mining 
purposes, and kept it dry by pumping in the usual way, 
with the result of drying up a well which belonged to the 
plaintiff, and was used by him to supply his cotton mill. 
Chasemore v.^R^Agrrfg^ carried the rule a step further in Cha»e' 
two directions. It settled that it makes no difference if SicAonf*. 
the well or watercourse whose supply is cut off or dimi- 
nished is ancient, and also (notwithstanding considerable 
doubt expressed by Lord Wensleydale) that it matters not 
whether the operations carried on by the owner of the 
surface are or are not for any purpose connected with the 

(«) Per Cor., BallawrkUh Mining (0 12 M. & W. 324, 13 L. J. 

Q>. ▼. Harriton (1873) L. B. 6 P. 0. Ex. 289 (1843). 
St p. 61, 48 L. J. P. 0. 19. («) 7 H. L. 0. 849, 29 L. J. Ex. 

81 (1859). 



140 



GENERAL EXCEPTIONS. 



Other 
applica- 
tioDB of 
same 
principle. 



1186 of the land itself. The defendants in the cause were 
virtually the Local Board of Health of Croydon, who had 
sunk a deep well on their own land to obtain a water 
supply for the town. The making of this well, and the 
pumping of great quantities of water from it for the use 
of the town, intercepted water that had formerly found its 
way into the river Wandle by underground channels, and 
the supply of water to the plaintiff's ancient mill, situated 
on that river, was diminished. Here the defendants, 
though using their land in an ordinary way, were not 
using it for an ordinary purpose. But the House of Lords 
refused to make any distinction on that score, and held 
the doctrine of Actcm v. Blundell applicable {x). The right 
claimed by the plaintiff was declared to be too large and 
indefinite to have any foundation in law. No reasonable 
limits could be set to its exercise, and it could not be 
reconciled with the natural and ordinary rights of land- 
owners. These decisions have been generally followed in 
the United States {y). 

There are many other ways in which a man may use 
his own property to the prejudice of his neighbour, and 
yet no action lies. I have no remedy against a neighbour 
who opens a new window so as to overlook my garden : 
on the other hand, he has none against me if, at any time 
before he has gained a prescriptive right to the light, I build 
a wall or put up a screen so as to shut out his view from 
that window. But the principle in question is not confined 
to the use of property. It extends to every exercise of 
lawful discretion in a man's own affairs. A tradesman 



(:r) Gp., as to tlie distinction be- 
tween the '* natural nser*' of land 
and the maintenance of artificial 
vorksi Hurdman y. N, £. It, Co. 
(1878) 3 0. P. Div. at p. 174, 47 



L. J. 0. P. 368 ; and farther as to 
the limits of '< natural user," J9a/- 
lardY. Tomlinttm (1886) 29 Ch. Div. 
116, 64 L. J. Ch. 464. 
(y) Cooley on Torts 680. 






MALICIOUS EXEECISE OF EIGHTS ? •^ 141 

may depend in great measure on one large customer. 
This person, for some cause of dissatisfaction, good or 
bad, or without anj assignable cause at all, suddenly with- 
draws Ids custom. Hifl conduct may be unreasonable and 
ill-conditioned, and the manifest cause of great loss to the 
tradesman. Yet no legal wrong is done. And such 
matters could not be otherwise ordered. It is more toler- 
able that some tradesmen should suffer from the caprice of 
customers than that the law should dictate to customers 
what reasons are or are not sufficient for ceasing to deal 
with a tradesman. 

But there are cases of this class which are not so obvious. Rogert y. 
A curious one arose at Calcutta at the time of the Indian ])^t. ^ 
Mutiny, and was taken up to the Privy Council. Bajendro 
Dutt and others, the plaintiffs below, were the owners of 
the Undei^toritery a tug employed in the navigation of the 
Hoogly. A troopship with English troops^'arrived at the 
time when they were most urgently needed. For towing 
up this ship the captain of the tug asked an extraordinary 
price. Failing to agree with him, and thinking his demand 
extortionate. Captain Bogers, the Superintendent of Marine 
(who was defendant in the suit), issued a general order to 
officers of the Government pilot service that the Underwriter 
was not to be allowed to take in tow any vessel in their 
charge. Thus the owners not only failed to make a profit 
of the necessities of the Government of India, but lost 
the ordinary gains of their business so far as they were 
derived from towing ships in the charge of Government 
pilots. The Supreme Court of Calcutta held that these 
facts gave a cause of action against Captain Bogers, 
but the Judicial Committee reversed the decision on 
appeal (2). The plaintiffs had not been prejudiced in any 
definite legal right. No one was bound to employ their 

(2) Eogers y. Maj.idro Dutt, 8 Moo. I. A. 103. 



142 GENERAL EXCEPTIONS. 

tugy an J more than they were bound to take a jBxed sum 
for its services. If the Government of India, rightly or 
wrongly, thought the terms unreasonable, they might 
decline to deal with the plaintiffs both on the present 
and on other occasions, and restrain public servants from 
dealing with them. 

** The Ghovemment certainly, as any other master, may 
lawfully restrict its own servants as to those whom they 
shall employ under them, or co-operate with in performing 
the services for the due performance of which they are 
taken into its service. Supposing it had been believed 
that the Undertcriter was an ill-found vessel, or in any way 
imfit for the service, might not the pilots have been law- 
fully forbidden to employ her imtil these objections were 
removed P Would it not indeed have been the duty of 
the Government to do so P And is it not equally lawful 
and right when it is honestly believed that her owners will 
only render their services on exorbitant terms P" {x). 

It must be taken that the Court thought the order com- 
plained of did not, as a matter of fact, amount to an 
obstruction of the tug-owners' common right of offering 
their vessel to the non-official public for employment. 
Conduct might easily be imagined, on the part of an officer 
in the defendant's position, which would amount to this. 
And if it did, it would probably be a cause of action (y). 

Whether In this last case the harm suffered by the plaintiff in 
material the Court below was not only the natural, but apparently 
in uiese ^^ intended consequence of the act complained of. The 
defendant however acted from no reason of private hos- 
tility, but in the interest (real or supposed) of the public 
service. Whether the averment and proof of malice, in 
other words that the act complained of was done with the 

(x) 8 Moo. I. A. at p. 134. t. EickeringiU, 11 East at pp* 576, 

(y) 8ee per Holt 0. J. in KethU 676, 11 B. B. 274 n. 



MALICIOUS EXEBaSE OF BIGHTS ? 



143 



sole or chief intention of oausing harm to the plsdntiiS as 
a private enemj (s), would make any difference in cases of 
this class, does not appear to be finally decided by any autho- 
rity in our law. In Rogers v. Rajendro Dutt the Judicial 
Committee expressly declined to say what the decision 
would be if this element were present. In Chasemore v. 
Richards the statement of facts (by an arbitrator) on which 
the case proceeded expressly negatived any intention to 
harm the plaintiff. Lord Wensleydale thought (appa- 
rently with reluctance) that the principle of regarding the 
presence or absence of such an intention had found no 
place in our law (a) ; and partly for that reason he would 
have liked to draw the line of unquestionable freedom of 
use at purposes connected with the improvement of the 
land itself; but he gave no authority for his statement. 
At the same time it must be allowed that he expressed the 
general sense of English lawyers ((), and his opinion has 
now been followed {bb). 

The Boman lawyers on the other hand allowed that Boman 
" animus vicino nocendi " did or might make a difference. 



Ml iT n ^li ; 



In a passage cited and to some extent relied on (in the J[^J^di.»» 
scantiness, at that time, of native authority) in Acton v. 



{2) It is yery difiBcolt to say 
what '* malice/' as a term of art, 
really means in any one of its gene- 
rally similar bnt not idoitical usee ; 
but I think the gloss here given is 
sufficiently correct for the matter 
in hand. At all events, the inten- 
tion of causing disadyantage to the 
plaintiff as a competitor in busi- 
ness by acts in themselves lawful, 
and done in the course of that 
business, does not make such acts 
wrong^ful : Mogul Steamahip Co. v. 
McGregor (1889) 23 Q. B. Div. 598, 
H. L., *92, A. G. 25, 61 L. J. Q. 
B. 295. 



(a) 7 H. L. C. at p. 388. But 
see per Fry L. J., 23 Q. B. Div. at 
p. 625, on the hypothetical case of 
*' competition used as a mere engine 
of malice." 

(4) See Sir W. Markby's " Ele- 
ments of Law," s. 239. 

{hb) Corporation of Bradford vj 
FickUt, '94, 3 Ch. 53 (North J)., 
where, although the plaintiff sue-] 
oeeded on the ground that th< 
defendant had broken a statutoi 
prohibition, the question of thi 
defendant's good faith was dis- 
cussed and held immaterial, and th^ 
plaintiff lost haU his oosts. See ai 
p. 7U 



1^ GENERAL EXCEPTIONS. 

Blundelly we read: "Denique Maroellus Boribit, oum eo 
qui in suo fodiens vioini fontem avertit, nihil posse agi, 
nee de dolo aotionem : et sane non debet habere, si non 
animo vioino nooendi, sed sunm agrum meliorem faoiendi 
id fecit" (c). And this view is followed by recognized 
authorities in the law of Scotland, who saj that an owner 
using his own land must act ^^ not in mere spite or malice, 
in aemulationem vicini*^ (d). There seems on principle to 
be much to recommend it. Certainly it would be no 
answer to say, as one is inclined to do at first sight, that 
the law can regard only intentions and not motives. For 
in some cases the law does abeady regard motive as dis- 
tinct from proximate intention, as in actions for malicious 
prosecution, and in the question of privileged communica- 
tions in actions for libel. And also this is really a matter 
of intention. Ulterior motives for a man wishing ill to 
his neighbour in the supposed case may be infinite : the 
purpose, the contemplated and desired result, is to do such 
and such ill to him, to dry up his well, or what else it may 
be. If our law is to be taken as Lord Wensleydale 
assumed it to be, its policy must be rested simply on a 
balance of expediency. Animus vicino nocendi would be 
very difficult of proof, at all events if proof that mis- 
chief was the only purpose were required (and it would 
hardly do to take less) : and the evil of letting a certain 
kind of churlish and unneighbourly conduct, and even 
deliberate mischief, go without redress (there being no 
reason to suppose the kind a common one), may well be 
thought less on the whole than that of encouraging 
vexatious claims. In Eoman law there is nothing to show 
whether, and how far, the doctrine of Ulpian and Mar- 
cellus was found capable of practical application. I cannot 
learn that it has much effect in the law of Scotland. It 

ic) D. 39, 3, de aqna, 1, § 12 (d) Bcll*8 Principles, 966 (re- 

(Ulpian). f erred to by Lord Wensleydale). 



I 



LEAVE AND LICENCE. 146 

seems proper, however, to point out that there is reallj no 
positive English authority on the matter. 

Again our law does not in general recognize anj exdu- Cases of 
sive right to the use of a name, personal or local. I maj names, 
use a name similar to that which my neighbour uses — and 
that whether I inherited or found it, or have assumed it of 
my own motion — so long as I do not use it to pass off my 
wares or business as being his. The fact that inconvenience 
arises from the similarity will not of itself constitute a 
legal injury (^), and allegations of pecuniary damage will 
not add any legal effect. '^You must have in our law 
injury as well as damage " (/). 



1 0. — Leave and Licence : Volenti non fit iniuria. 

Harm suffered by consent is, within limits to be men- Consent or 
tioned, not a cause of civil action. The same is true where ofri^ 
it is met with under conditions manifesting acceptance, Jj^^?*^^ 
on the part of the person suffering it, of the risk of that 
kind of harm. The maxim by which the rule is commonly ^ 

brought to mind is "Volenti non fit iniuria," "Leave 
and licence " is the current English phrase for the defence 
raised in this dass of cases. On the one hand, however, 
volenti non fit iniuria is not universally true. On the other 
hand, neither the Latin nor the English formula provides 
in terms for the state of things in which there is not 

(e) See Burge»$ y. Burgnt (1863) ^, (1885) 30 Ch. D. 156, 65 L. J. 

8 D. K. G. 896, 22 L. J. Ch. 676, Ch. 31. Cp. Montgomery y, Thomp- 

a classical case ; Du Boulay t. Du ton, '91, A. C. 217, 60 L. J. Ch. 

Bouiay (1869) L. B. 2 P. C. 430, 767. 

38 L. J. P. C. 36 ; Day v. Broum- (/) Jessel M. R., 10 Ch. Div. 

rigg (1878) 10 Ch. IHir. 294, 48 804. • 
L. J. Ch. 173; Street v. Union Bank, 

P. I, 



146 



GENERAL EXCEPTIOl^rS. 



EzproflS 
lioeiioe. 



Lbniisof 
oonsent. 



speoifio will or assent to suffer something whiclii if inflioted 
against the partj's will, would l)e a wrong, but only 
oonduot showing that, for one reason or another, he is 
content to abide the ohanoe of it (g). 

The case of express oonsent is oomparatiyelj rare in our 
books, except in the form of a licence to enter upon land. 
It is indeed in this last connexion that we most often hear 
of " leave and licence," and the authorities mostly turn on 
questions of the kind and extent of permission to be in- 
ferred from particular language or acts (A). 

Force to the person is rendered lawful by consent in 
such matters as surgical operations. The fact is common 
enough ; indeed authorities are silent or nearly so, because 
it is common and obvious. Taking out a man's tooth 
without his consent would be an aggravated assault and 
battery. With consent it is lawfully done every day. In 
the case of a person under the age of discretion, the 
consent of that person's parent or guardian is generally 
necessary and sufficient (t). But consent alone is not 
enough to justify what is on the face of it bodily harm. 
There must be some kind of just cause, as the cure or 
extirpation of disease in the case of surgery. Wilful hurt 
is not excused by consent or assent if it has no reasonable 
object. Thus if a man licenses another to beat him, not 
only does this not prevent the assault from being a punish- 
able offence, but the better opinion is that it does not 
deprive the party beaten of his right of action. On this 



(^) Unless we said that Isaw 
points to specific oonsent to an 
act, liemee to general assent to the 
consequences of acts consented to : 
but such a distinction seems too 
fancifol. 



(h) See Adduon on Torts, p. 
384, 7th ed. ; Gooley on Torts, 303, 
sqq. 

(i) Cp. Stephen, Digest of the 
Criminal Law, art. 204. 



IT- 



LIMITS OF LAWFUL CONSENT. 

prinoiple pnze-fightB and the like ^^are tmlawful even 
when entered into by agreement and without anger or 
mutual ill-will "(*). ** Whenev er two persons go out to 
strike each other^ and do so« jaa^h^ goiii^ oi an 
assault" (/). The reason is said to be that such acts are l 
against the peace, or tend to breaches of the peace. But, I 
inasmuch as even the slightest direct application of force, 
if not justified, was in the language of pleading vi ei armis 
and contra pacem^ something more than usual must be 
meant by this expression. The distinction seems to be 
that agreement will not justify the wilful causing or 
endeavouring to cause appreciable bodily harm for the 
mere pleasure of the parties or others. Boxing with 
properly padded gloves is lawful, because in the usual 
course of things harmless. Fighting with the bare fist is 
not. Football is a lawful pastime, though many kicks are 
given and taken in it ; a kicking match is not. '* As to 
playing at foils, I cannot say, nor was it ever said that 
I know of, that it is not lawful for a gentleman to learn 
the use of the small sword ; and yet that cannot be learned 
without practising with foils " (m). Fencing, single-stick, 
or playing with blunt sabres in the accustomed manner, is 
lawful, because the players mean no hurt to one another, 
and take such order by the use of masks and pads that no 
hurt worth speaking of is likely. A duel with sharp 
swords after the manner of Qerman students is not lawful, 
though there be no personal enmity between the men, and 



{h) Commontpealth y. CoUberg BnUer N. P. 16. The passage 

(1876) 119 Mass. 350, and 20 Am. there and elsewhere cited from 

Kep. 3*28, where authorities are Comberbach, apart from the 

oolleoted. See also Reg, y. Ckmey slender aathority of that reporter, 

(1882) 8 Q. B. D. 534, 538, 546, is only a dictnm. BuUer's own 

549, 567, and next page. anthority is really better. 

(Q Coleridge J. in Meg, y. Lewis (m) Foster's Oown Law, 260. 
(1844) 1 0. & K. at p. 421, op. 

l2 



147 



148 



OENERAIi EXCEPTIONB. 



though the conditions be such as to exclude danger to life 
or limb. Here it cannot b# said that " bodily harm was 
not the motive on either side '' (n). It seems to be what is 
oaUed a question of mixed law and fact whether a particu- 
lar action or contest involves such intention to do real hurt 
that consent or assent will not justify it {o). Neglect of 
usual precautions in any pastime known to involve danger 
would be evidence of wrongful intention, but not conclu- 
sive evidence. 



m 



Coney, 



This question was incidentally considered by several of 
the judges in Eeg. v. Conet/ {p)y where the majority of the 
Court held that mere voluntary presence at an unlawful 
fight is not necessarily punishable as taking part in an 
assault, but there was no difference of opinion as to a 
prize-fight being unlawful, or all persons actually aiding 
and abetting therein being guilty of assault notwithstand- 
ing that the principals fight by mutual consent. The 
Court had not, of course, to decide anything as to civil 
liability, but some passages in the judgments are material. 
Cave J. said : '^ The true view is, I think, that a blow 
struck in anger, or which is likely or is intended to do 
corporal hurt, is an assault, but that a blow struck in 
sport, and not likely nor intended to cause bodily harm, 
is not an assault, and that, an assault being a breach of 



>» 



(n) Foster, L c. ''Motive" is 
hardly the ooneot word, but the 
meaning is plain enoagh. 

(o) Gp. Ftilton, De Pace Begis, 
17 b. It might be a nioe point 
whether the old English baok- 
B wording (see ** Tom Brown ") was 
lawful or not. And quaere of the 
old rules of Rugby football, which 
allowed deliberate kicking in some 
circumstances. Qcmmt^, also, whether 



one monk might haye lawfully 
licensed another to beat him by 
way of spiritual discipline. But 
anyhow he could not have sued, 
being dyilly dead by his entering 
into religion. 

{p) 8 Q. B. D. 634, 51 L. J. 
M. C. 66 (1882). For fuller col- 
lection and consideration of autho- 
rities, cp. Kr. Edward Manson's 
note in L. Q. B. yi. 110. 



LIMITS OP LAWFUL CONSENT. 



149 



the peace and unlawful, the consent of the person struck 
is immaterial. If this view is correct a blow struck in a 
prize-fight is clearly an assault ; but playing with single- 
sticks or wrestling do not involve an assault, nor does 
boxing with gloves in the ordinary way " (y). Stephen J. 
said : *^ When one person is indicted for inflicting 
personal injury upon another, the consent of the person 
who sustains the injury is no defence to the person who 
inflicts the injury, if the injury is of such a nature, or 
is inflicted under such circumstances, that its infliction is 
injurious to the public as well as to the person injured. 
. . . • In cases where life and limb are exposed to no 
serious danger in the common course of things, I think 
that consent is a defence to a charge of assault, even when 
considerable force is used, as for instance in cases of 
wrestling, singlestick, sparring with gloves, football, and 
the like ; but in all cases the question whether consent 
does or does not take from the application of force to 
another its illegal character is a question of degree depend- 
ing upon circumstances" (r). These opinions seem equally 
applicable to the rule of civil responsibility («). 

A licence obtained by fraud is of no effect. This is too Licence 
obvious on the general principles of the law to need ^ud? ^ 
dwelling upon (t). 



{q) 8 Q. B. D. at p. 639. As to 
the limits of lawful boxing, see 
Jteg. V. Orton (1878) 39 L. T. 293. 

(r) 8 Q. B. D. at p. 649. Com- 
pare arts. 206, 208 of the learned 
judge's ''Digest of the Criminal 
Law." The language of art. 208 
follows the authorities, but I am 
not sure that it exactly hits the 
distinction. 

(«) Notwithstanding the doubt 



expressed by Hawkins J., 8 Q. B. 
D. at pp. 663, 664. 

{fj A rather curious illustration 
may be found in Daviea y. Mar^ 
ihall (1861) 10 C. B. N. S. 697, 
31 L. J. C. P. 61, where the so- 
caUed equitable plea and replica- 
tion seems to have amounted to a 
common law plea of leaye and 
licence and joinder of issue, or 
perhaps new assignment, thereon. 



160 



OENESAL EXCEPTIONS. 



meaning 
of volenti 
turn Jit 
tniNrui. 



Trials of fltrengih and skill in such pastimes as those 
above mentioned afford, when carried on within lawful 
bounds, the best illustration of the principle bj which the 
mazim volenti non fit iniuria is enlarged beyond its literal 
meaning. A man cannot complain of harm (within 
the limits we have mentioned) to the chances of which 
he has exposed himself with knowledge and of his free 
wUl. Thus in the case of two men fencing or playiag 
at singlestick, voknti nan fit iniuria would be assigned bj 
most lawyers as the goveming rule, yet the words must 
be forced. It is not the will of one player that the other 
should hit him; his object is to be hit as seldom as 
possible. But he is content that the other shall hit him 
as much as by fair play he can ; and in that sense the 
striking is not against his wilL Therefore the ** assault " 
of the school of arms is no assault in law. StiLL less is 
there an actual consent if the fact is an accident, not a 
necessary incident, of what is being done ; as where in the 
course of a cricket match a player or spectator is struck by 
the ball. I suppose it has never occurred to any one that 
legal wrong is done by such an accident even to a spectator 
who is taking no part in the game. So if two men are 
fencing, and one of the foils breaks, and the broken end, 
being thrown off with some force, hits a bystander, no 
wrong is done to him. Such too is the case put in the 
Indian Penal Code (u) of a man who stands near another 
cutting wood with a hatchet, and is struck by the head 
flying off. It may be said that these examples are trivial. 
They are so, and for that reason appropriate. They show 
that the principle is constantly at work, and that we find 
little about it in our books just because it is unquestioned 
in common sense as well as in law. 



(tt) Blast, to s. 80. On the point of actual oonaent, of. B8. 87 and 88. 



r 



TAKING BISK. 



151 



Manj oases of this kind seem to fall not less naturally Relation 
under the exoeption of inevitable accident. But there is, cases to 
we conceive, this distinction, that where the plaintiff has J^S^. 
voluntarilj put himself in the waj of risk the defendant 
is not bound to disprove negligence. If I choose to stand 
near a man using an axe, he maj be a good woodman or 
not ; but I cannot (it is submitted) complain of an accident 
because a more skilled woodman might have avoided it. 
A man dealing with explosives is bound, as regards his 
neighbour's property, to diligence and more than diligence. 
But if I go and watch a firework-maker for my own 
amusement, and the shop is blown up, it seems I shall 
have no cause of action, even if he was handling his 
materials unskilfully. This, or even more, is implied in 
the decision in Bott v. Wilkes {x)y where it was held that 
one who trespassed in a wood, having notice that spring- 
guns were set there, and was shot by a spring-gun, could 
not recover. The maxim " volenti non fit inimia " was 
expressly held applicable: "he voluntarily exposes him- 
self to the mischief which has happened " (^). The case 
gave rise to much public excitement, and led to an altera- 
tion of the law (2), but it has not been doubted in subse- 
quent authorities that on the law as it stood, and the 
facts as they came before the Court, it was well decided. 
As the point of negligence was expressly raised by the 



[x) 8 B. & Aid. 304 (1820) ; op. 
and dist. the later case of Bird r. 
Solbrook (1828) 4 Bing. 628. The 
arg^ament that siiice the defendant 
could not haye justified shootmg a 
trespasser with his own hand, even 
after warning, he oonld not justify* 
shooting him with a spring-gxui, 
is weighed and found wanting, 
though perhaps it ought to haye 
prevailed. 



(y) Per Bayley J. 3 B. & Aid. at 
p. 311, and Holroyd J. at p. 314. 

(z) Ediii.Itey.zzzy.l23,410(re- 
printed in Sydney Smith's works). 
Setting spring- guns, except bj 
night in a dwelling house for the 
protection thereof, was made a 
criminal oflenoe by 7 & 8 Geo. IV. 
0. 18, now repealed and subetan- 
tiaUy re-enacted (24 & 26 Vict, 
c. 95, 8. 1, and c. 100, s. 31). 



152 GENERAL EXCEPTIONS. 

pleadings, the deoifiion is an authority that if a man goes 
out of his way to a dangerous action or state of things, 
he must take the risk as he finds it. And this appears 
to be material with regard to the attempt made by re- 
spectable authorities, and noticed above, to bring under 
this principle the head of excuse by reason of incTitable 
accident (a). 

Know- It was held by a majority of the Court of Appeal that 

ziak op- if a man undertakes to work in a railway tunnel where he 
J^^^l^ knows that trains are constantly passing, he cannot com- 
waining. plain of the railway company for not taking measures to 
warn the workmen of the approach of trains, and this 
though he is the servant not of the company but of the 
contractor (6). The minority held that the railway com- 
pany, as carrying on a dangerous business, were bound not 
to expose persons coming by invitation upon their property 
to any undue risk, and at all events the burden of proof 
was on them to show that the risk was in fact understood 
and accepted by the plaintiff {c). " If I invite a man who 
has no knowledge of the locality to walk along a dangerous 
cliff which is my property, I owe him a duty different to 
that which I owe to a man who has all his life birdnested 
on my rocks" (d). 

But where a man goes on doing work under a risk which 
is known to him, and which does not depend on any one 
else's acts, or on the condition of the place where the work 

(a) HolmM ▼. Mather (1876) L. (e) Cp. ThomM ▼. QuarUrmain$ 

B. 10 Ex. at p. 267 ; Ityland$ y. (1887) 18 Q. B. Dir. 686, 66 L. J. 

Fletcher (1866) L. R. 1 Ex. at p. Q. B. 340, and Lord HenoheU's 

287. jadgment in Memhery y. G. W, JB. 

(6) WwMey y. Metr, Diet. £. Co. Co, (1889) 14 App. Ca. 179, 190. 

(1877) 2 Ex. Diy. 384, 46 L. J. (rf) Fry L. J. 18 Q. B, Diy, at 

Ex. 621 ; Melliah and Baggallay p. 701. And boo Yarmouth ▼. 

L. JJ. diM. France (1887) 19 Q. B. D. 647, 67 

L. J. Q. B. 7. 



TAKING BISK. 



isa 



is done, but is incident to the work itself, lie cannot be 
heard to say that his exposure of himself to such risk was 
not voluntary {e). 

The principle expressed by volenti non Jit iniuria is Gases 
different from that of contributory negligence (/), as it employers 
is in itself independent of the contract of service or any ^p]^^ . 
other contract (g). It does not follow that a man is negli- Smith ▼. 
gent or imprudent because he chooses to encounter a risk 
which he knows and appreciates; but if he does volun- 
tarily run the risk, he cannot complain afterwards (A). 
At the same time knowledge is not of itself conclusive. 
The maxim is volenti— rnot acienti — non Jit iniuria; " the 
question whether in any particular case a plaintiff was 
volens or noletis is a question of fact and not of law"(t). 
A workman is not bound, for example, to throw up his 
employment rather than go on working with appliances 
which he knows or suspects to be dangerous; and con- 
tinuing to use such appliances if the employer cannot or 
will not give him better is not conclusive to show that he 
voluntarily takes the attendant risk {k). As between an 
employer and his own workmen, it is hardly possible to 
separate the question of knowledge and acceptance of a 
particular risk from the question whether it was a term in 
the contract of service (though it is seldom, if ever, an 



(e) Membery ▼. (7. W, M. Co, 
note (<;), last page. Lord Bram- 
well's extra-jodioial remarks can- 
not be supported:, see per Lord 
Hersohell, 14 App. Ga. at pp. 192, 
193 ; and Smith y. Baker ^ note (i), 
p. 165. 

(/) Bowen L. J. in Thomat y. 
Quartermaim (1887) 18 Q. B. Diy. 
686, 694, 697, 66 L. J. Q. B. 340. 

ijf) 18 Q. B. Diy. at p. 698. 



(h) Bowen L. J. 18 Q. B. Diy. 
at p. 696. 

(i) Ibid, at p. 696 ; Lindley L. J. 
in Yarmouth y. Franee (1887) 19 
Q. B. D. 647, 669, before jadges 
of the G. A. sitting as a diyisional 
Gourt. 

{k) Farmou^A y. JVaiM^, last note ; 
Thrusaell y. Handytide (1888) 20 
Q. B. D. 369, 67 L. J. Q. B. 347 ; 
Smith y. Baker, '91, A. G. 325, 60 
L. J. Q. B. 683. 



154 GENERAL EXCEPTIONS. 

express ienn) that the workman should aooept that risk. 
Since the Employers' Liability Aot has deprived the 
master, as we have already seen, of the defence of 
"common employment" in a considerable number of 
cases, the defence of roknti nonfit iniuria has several times 
been resorted to, with the effect of raising complicated dis- 
cussion on tolerably simple facts. By treating the maxim 
as if it were of literal authority (which no maxim is), and 
then construing it largely, something very like the old 
doctrine of "common employment" might have been 
indirectly restored. For some time there was appreciable 
danger of this result. But the tendency was effectually 
checked by the decision of the House of Lords in Smith 
V. Baker {e). Except where there is an obvious and 
necessary danger in the work.itself, it must be a question 
of fact in every case whether there was an agreement or 
at any rate consent to take the risk. " Where a person 
undertakes to do work which is intrinsically dangerous, 
notwithstanding that reasonable care has been taken to 
render it as little dangerous as possible, he no doubt 
voluntarily subjects himself to the risks inevitably accom- 
panying it, and cannot, if he suffers, be permitted to com- 
plain that a wrong has been done him, even though the 
cause from which he suffers might give to others a right 
of action :" as in the case of works tmavoidably producing 
noxious fumes. But where "a risk to the employed, 
which may or may not result in injury, has been created 
or enhanced by the negligence of the employer," there 
" the mere continuance in service, with knowledge of the 
risk," does not "preclude the employed, if he suffer 
from such negligence, from recovering in respect of his 
employer's breach of duty"(/). And it seems that 

(9) '91 A. G. 326. (/) Lord HenoheU, '91 A. C. 

at pp. 860, 862. 



TAKING BISK. 



155 



(apart from contracts to take a class of risks) there must 
be consent to the particular act or operation which is 
hazardous, not a mere general assent inferred from know- 
ledge that risk of a certain kind is possible (g). 

Gases of volenti nan fit iniuria are of course to be dis- Bistino- 
tinguished from cases of pure unexpected accident where qq negli- 
there is no proof of any negligence at all on the def en- ^^ ** 
dant's part (A). It seems that Thoniaa v. Qtiarte^^fnaine^ 
though not so dealt with, was really a case of this latter 
kind(i). 

In the construction of a poUcy of insurance against 
death or injury by accident, an exception of harm '* hap- 
pening by exposure of the insured to obvious risk of 
injury " includes accidents due to a risk which would 
have been obvious to a person using common care and 
attention {K) , 



[ 



We now see that the whole law of neeliirence assumes Distino- 
the principle of volenti nonfit iniuria not to be applicable, ci^ 
It was suggested in Holmes v. Mather {I) that when a n^^jLnce 
competent driver is run away with by his horses, and in i* ground 
spite of aU he can do they run over a foot-passenger, the 
foot-passenger is disabled from suing, not simply because 
the driver has done no wrong, but because people who 
walk along a road must take the ordinary risks of traffic. 
But if this were so, why stop at misadventure without 
negligence P It is common knowledge that not all drivers 



(g) Lotd Halsbmy, '91, A. G. 
at pp. 836->338. 

(A) WdUh Y. Whitehy (1888) 21 
Q. B. Div. 371, 67 L. J. Q. B. 
686. 

(») See Lord Monia's remarks 
in Smith r. Bak$r, '91, A. C. at 
p. 369. In Smith y. JBak^ itaelf, 
an appeal from a Goimty Court, 



this point, not haying been raised 
at the trial below, was not open on 
the appeal. It was neyerthelefls 
eztra-jndioially discussed, with 
considerable yariety of opinion. 

(Jc) Cornish y. Accident Imurancs 
Oa. (1889) 28 Q. B. Diy. 463, 68 
L. J. Q. B. 691. 

(0 L. R. 10 Ex. at p. 267. 



156 GENERAL EXCEPTIONS. 

are carefuL It is known, or oapable of being known, that 
a certain percentage are not oarefuL ''No one (at all 
events some years ago, before the admirable polioe reg^ula- 
tions of later years) oould have crossed London streets 
without knowing that there was a risk of being run 
over " (m). The actual risk to which a man crossing the 
street is exposed (apart from any carelessness on his own 
part) is that of pure misadventure, and also that of careless 
driving, the latter element being probably the greater. 
If he really took the whole risk, a driver would not be 
liable to him for running over him by negligence : which 
is absurd. Are we to say, then, that he takes on himself 
the one part of the risk and does not take the other P A 
reason thus artificially limited is no reason at all, but a mere 
fiction. It is simpler and better to say plainly that the 
driver's duty is to use proper and reasonable care, and 
beyond that he is not answerable. The true view, we 
submit, is that the doctrine of voluntary exposure to risk 
has no application as between parties on an equal footing 
of right, of whom one does not go out of his way more 
than the other. A man is not bound at his peril to fly 
from a risk from which it is another's duty to protect him, 
merely because the risk is known (n). Much the same 
principle has in late years been applied, and its limits 
discussed, in the special branch of the law which deals 
with contributory negligence. This we shall have to 
consider in its place (o). 



(m) Lord Halsboiy, '91, A. C. 42 L. J. Q. B. 105 ; £ohon ▼. N. E. 

at p. 337. It, Co, (1875) L. R. 10 Q. B. at 

(ft) Bmith y. Baker, '91, A. C. p. 274, 44 L. J. Q. B. 112; and 

325, 60 L. J. Q. B. 683 ; Thntsull per Bramwell L. J. (not lefemng 

Y. Handytide (1888) 20 Q. B. D. to these authoritiee, and taking & 

359, 57 L. J. Q. B. 347. somewhat difPerent view). Lax y. 

(o) See Oee y. Metropolitan £. Co, Corporation of Darlington (1879) 5 

(1873) Ex. Ch. L. B. 8 Q. B. 161, Ex. D. at p. 85, 49 L. J. Ex. 105. 



WORKS OF NECESSITY. 



167 



1 1 . — Works of neceBsity. 
A olafls of exoeptions as to which there is not much '^o'^ <rf 

; ... neoeBBity. 

authority, but which certainly exists in every system of 
law, is that of acts done of necessity to avoid a greater 
harm, and on that ground justified. Pulling down houses i 
to stop a fire (/?), and casting goods overboard, or otherwise 
sacrificing property, to save a ship or the lives of those on 
board, are the regular examples. The maritime law of 
general average assumes, as its very foundation, that the 
destruction of property under such conditions of danger is 
justifiable {q). It is said also that *^in time of war one 
shall justify entry on another's land to make a bulwark in 
defence of the king and the kingdom." In these oases the 
apparent wrong '^sounds for the public good" (r). There 
are also circumstances in which a man's property or person 
may have to be dealt with promptly for his own obvious 
good, but his consent, or the consent of any one having 
lawful authority over him, cannot be obtained in time. 
Here it is evidently justifiable to do, in a proper and 
reasonable manner, what needs to be done. It has never 
been supposed to be even technically a trespass if I throw 
water on my neighbour's goods to save them from fire, 
or seeing his house on fire, enter peaceably on his land to 
help in putting it out («). Nor is it an assault for the 



(p) "Dyer, 36 d. Cp. the opinion 
of Beet C. J. in Dewey y. WhiU 
(1827), M. & M. 66 (damage in- 
eTitalily done to plaintifl^e honae in 
throwing down chinmeTS mined by 
fixe, which were in danger of fall- 
ing into the highway: a yerdict 
for the defendants was aoqniesced 
in). 

(q) MoufeU eate, 12 Go. Bep. 63, 
is only just worth citing as an 
illustration that no action lies. 



(r) Einganull J. 21 Hen. VII. 
27, pi. 6 ; op. Dyer, ubi supra. In 
8 Ed. IV. 23, pi. 41, it is thought 
doubtful whether the justification 
should be by oommon law or by 
special custom. 

(«) Qood wiU without real neoes- \ 
sity would not do ; there must be 
danger of total loss, and, it is said, 
without remedy for the owner 
against any person, per Rede C. J. 
21 Hen. VII. 28, pi. 5 ; but if this 



168 



QENfiRAL EXCEPTIONS. 



first pafiser-by to piok up a man rendered inBensible hj an 
aoddenti or for a competent surgeon, if he peroeives that 
an operation ought forthwith to be performed to save the 
man's lif e, to perform it without waiting for him to reoover 
consoiousness and give his oonsent. These works of charity 
and necessity must be lawful as well as right. Our books 
. have only slight and scattered hints on the subject, pro- 
bably because no question has ever been made {t). 

It seems that on the same principle a stranger may 
justify interfering with the goods of a lately deceased 
person so far, but only so far, as required for the protec- 
tion of the estate or for other purposes of immediate 
necessiiy {u). 



Self. 

defence. 



12. — Private defence. 

Self-defence (or rather private defence (9), for defence 
of one's self is not the only case) is another ground of 
immunity well known to the law. To repel force by 
force is the conmion instinct of every creature that has 
means of defence. And when the original force is un- 
lawful, this natural right or power of man is allowed, nay 
approved, by the law. Sudden and strong resistance to 
unrighteous attack is not merely a thing to be tolerated ; 
in many cases it is a moral duty. Therefore it would be 



be law, it most be limited to reme- 
dieB against a trespaBser, for it 
oannot be a trespass or a lawful 
act to saTe a man's goods aooord- 
ing as they are or are not insured. 
Cp. Y. B. 12 Hen. VIII. 2, where 
there is some oorions discussion on 
the theory of trespass generally. 
A mere volunteer may not force 
his way into a house on fire already 
under the control of persons who 
are lawfully endeavouring to put 
down the fire, and are not mani- 



festly insufficient for that purpose : 
Carter ▼, Thwiuu, '98, 1 Q. B. 673, 
5 R. 343 (judgment of Kennedy J.) 

(t) Qi, the Indian Penal Code,) 
B. 92, and the powers given to the 
London Fire Brigade by 28 k 29 
Vict. c. 90, s. 12, which seem rather 
to assume a pre-existing right at 
common law. 

(u) See Kirk v. Ortgory (1876) 1 
Ex. D. 56, 69. 

(«) This is the term adopted in 
the Indian Penal Ciode. 



PRIVATE DEFENCE. 



169 



a grave miistake to regard self-defenoe as a neoessary evil 
suffered by the law because of the hardness of men's 
hearts. The right is a just and perfect one. It extends 
not only to the defence of a man's own person, but to the 
defence of his property or possession. And what may be 
lawfully done for oneself in this regard may likewise be 
done for a wife or husband, a parent or child, a master or 
servant {w). At the same time no right is to be abused or 
made the doak of wrong, and this right is one easily 
abused. The law sets bounds to it by the rule that the 
force employed must not be out of proportion to the 
apparent urgency of the occasion. We say apparent, for 
a man cannot be held to form a precise judgment under 
such conditions. The person acting on the defensive is 
entitled to use as much force as he reasonably beUeves to 
be necessary. Thus it is not. justifiable to use a deadly 
weapon to repel a push or a blow with the hand. It is 
even said that a man attacked with a deadly weapon must 
retreat as far as he safely can before he is justified in 
defending himself by like means. But this probably ap- 
plies (so far as it is the law) only to criminal liability (x). 
On the other hand if a man presents a pistol at my head 
and threatens to shoot me, peradventure the pistol is not 
loaded or is not in working order, but I shall do no wrong 
before the law by acting on the supposition that it is 
really loaded and capable of shooting. '^ Honest and 
reasonable beUef of immediate danger" is enough (y). 



(tt') Blackstone iii. 3 ; and see 
the opinion of all ihe justices of K. 
B., 21 Hen. VII. 39, pi. 50. There 
has been some doubt whether a 
master could justify on the ground 
of the defence of his servant. But 
the practice and the better opinion 
have always been otherwise. Before 
the Conquest it was understood 
that a lord might fight in defence 



of his men as well as they in his. 
LI. Alf. c. 42, { 6. 

{x) See Stephen, Digest of Cri- 
minal Law, art. 200. Most of the 
authority on this subject is in 
the early treatises on Pleas of the 
Crown. 

(y) N. 0, % N, E, £. JJ. Co, ▼. 
Japes (1891) 142 U. S. 18. 



160 



QEKERAL EXCEPTIONS. 



Kminff of Cafies have arisen on the kiUing. of animala in del enoe 
defence of of one's properiy. Here, as elsewhere, the test is whether 
property. ^^ parfy^s act was such as he might reasonably, in the 
circumstances, think necessary for the prevention of harm 
which he was not bound to suffer. Not very long ago the 
subject was elaborately discussed in New Hampshire, and 
all or nearly all the authorities, English and American, 
reviewed (2). Some of these, such as Deane v. Clapton (a), 
turn less on what amount of force is reasonable in itself 
than on the question whether a man is bound, as against 
the owners of animals which come on his land otherwise 
than as of right, to abstain from making the land 
dangerous for them to come on. And in this point of 
view it is immaterial whether a man keeps up a certain 
state of things on his own land for the purpose of defend- 
ing his properiy or for any other purpose which is not 
actually unlawful. 

As to injuries received by an innocent third person from 
an act done in self-defence, they must be dealt with on the 
same principle as accidental harm proceeding from any 
other act lawful in itself. It has to be considered, how- 
ever, that a* man repelling imminent danger cannot be 
expected to use as much care as he would if he had time 
to act deliberately. 



Self-defence does not include the active assertion of a 



Aflaertkm 
ofxighte 

dutin- disputed right against an attempt to obstruct its exercise. 



(s) Aldrieh ▼. JTriffht (1873) 63 
K. H. 898, 16 Am. Hep. 339. 
The deoiflion was that the penalty 
of a statute ordaming a close tiine 
for minks did not apply to a man 
who shot on his own land, in the 
close season, minks which he rea- 
sonably thought were in parsnit of 
his geef«. Compare Taylor app. 
Xewntan lefp. (1863) 4 B. & S. 89, 



82 L. J. M. C. 186. 

{a) 7 Taunt. 489, the case of 
dog-spears, where the Conrt was 
equally divided (1817) ; Jordin y. 
Crump (1841) 8 M. & W. 782, 
where the Court took the view of 
Gibbs C. J. in the last case, on 
the ground that setting dog- spears 
was not in itself illegal. Notice, 
however, was pleaded. 



DEFENCE AND NECESSITY. 161 

r 

I am not justified in ahootiiig, or ofEering to shoot, one paaked. 
who obstructs my right of way, though I may not be able defenoe. 
to pass him otherwise, and though I am justified in resist- 
ing, within due bounds, any aotiye force used on his part. 
It seems the better opinion *^ that the use of force which 
inflicts or may inflict grievous bodily harm or death — of 
what in short may be called extreme force — ia justifiable 
only for the purpose of strict self-defence " (b). I may be , 
justified in pushing past the obstructor, but this is not J 
an act of self-defence at all ; it is the pure and simple ' 
exercise of my right itself (c). 

Many interesting questions, in part not yet settled, may 
be raised in this connexion, but their interest belongs for 
most practical intents to pubUc and not to private law. It 
must not be assumed, of course, that whatever is a suffi- 
cient justification or excuse in a criminal prosecution will 
equally suffice in a civil action. 

Some of the dicta in the weU-known case of Scoti v, Injnry to 
Shepherd (d ) go the length of suggesting that a man acting gons from 
on the spur of the moment under "compulsive necessity" ^.^ 
(the expression of De Gbey O.J.) is excusable as not being defence. 
a voluntary agent, and is therefore not bound to take any 
care at all. But this appears very doubtful. In that case 
it is hard to beUeve that Willis or Byal, if he had been 
worth suing and had been sued, could have successfully 

made such a defence. They " had a right to protect 

themselves by removing the squib, but should have taken 
care " — at any rate such care as was practicable under the 
oiroumstances — "to do it in such a manner as not to 
endamage others" (e). The Eoman lawyers held that a 

{b) Dioey, Law of ihe CoxiBtita- (<Q 2 W. Bl. 892. 

tion, 4tli ed. 1893, appx. note (N), (e) Blaokstone J. in his diasent- 

which Bee for fnller disooBsion. ing judgment, 2 W. Bl. at p. 895. 

(0) Dioey, op. eii, 426. 

P. M 



162 GENERAL EXCEPTIONS. 

man who throws a stone in self-defence is not excused if 
the stone by misadyenture strikes a person other than the 
assailant (/). Perhaps this is a harsh opinion, but it seems 
better, if the choice must be made, than holding that one 
may with impunity throw a lighted squib across a market- 
house full of people in order to save a stall of gingerbread. 
At all events a man cannot justify doing for the protection 
of his own property a deliberate act whose evident tendency 
is to cause, and which does cause, damage to the property 
of an innocent neighbour. Thus if flood water has come 
on my land by do faidt of my own, this does not entitle 
me to let it off by means which in the natural order of 
things cause it to flood an adjoining owner's land (^). 



13. — Plaiidiffa wrong-doer. 

Harm sof-i Language is to be met with in some books to the effect 
ft wrong- ' that a man cannot sue for any injury suffered by him at a 
doubtful *^® when he is himself a wrong-doer. But there is no 
whether g^jch general rule of law. If there were, one consequence 
disability, would be that an occupier of land (or even a fellow tres- 



passer) might beat or wound a trespasser without being 
' liable to an action, whereas the right of using force to 
f repel trespass to land is strictly limited ; or if a man is 
/ riding or driving at an incautiously fast pace, anybody 
( might throw stones at him with impunity. In Bird v. 

Holbrook (h) a trespasser who was wounded by a spring-gun 

(/) D. 9. 2, ad 1. Aquil. 46, {4; oommon danger. 

tupra^ p. 124. (A) (1828) 4 Bing. 628. Cp. p. 

(y) Whalley y. Lane, and York" 161, above. The oau«e of action 

thir^ JR, Co. (1884) 13 Q. B. Dly. arose, and the trial took place, 

131, 63 L. J. Q. B. 285, diatin- before the passing of the Act which 

gxdshing the case of acts lawful in made the setting of spring-gfuns 

themselves which are done by way unlawful, 
of precaution against an impending 



WHERE PLAINUPP A WKONG-DOEE. 163 

set without notioe was held entitled to maintain his action. 
And generally^ ** a trespasser is liable to an action for the 
injury which h e does ; but . he doee .pat. f orf^JA.Ha J^sbtof 
action for an injury sustained " (t). It does not appeax 
on the whole that a plaintiff is disabled from recovering 
bj reason of being himself a wrong-doer, unless some 
unlawful act or conduct on his own part is connected with 
the harm suffered by him as part of the same transaction : 
and eyen then it is difficult to find a case where it is neces- 
sary to assume any special rule of this kind. It would be 
no answer to an action for killing a dog to show that the 
owner was liable to a penalty for not having taken out a 
dog licence in due time. If, again, A. receives a letter 
containing defamatory statements concerning B., and reads 
the letter aloud in the presence of several persons, he may 
be doing wrong to B. But this will not justify or excuse 
B. if he seizes and tears up the letter. A. is unlawfully 
possessed of explosives which he is carrying in his pocket. 
B., walking or running in a hurried and careless manner, 
jostles A. and so causes an explosion. Certainly A. cannot 
recover against B. for any hurt he takes by this, or can at 
most recover nominal damages, as if he had received a 
harmless push. But would it make any difference if A.'s 
possession were lawful P Suppose there were no statutory 
regtdation at all : stQl a man going about with sensitive 
explosives in his pocket would be exposing himself to an 
unusual risk obvious to him and not obvious to other 
people, and on the principles already discussed would have 
no cause of action. And on the other hand it seems a 
strong thing to say that if another person does know of 
the special danger, he does not become bound to take 
answerable care, even as regards one who has brought 

(i) BartM t. JTard (1860) 9 G. B. 392, 19 L. J. 0. P. 195. 

m2 



164 GENERAL EXCEPTIONS. 

himself into a podtion of danger hj a "wrongful act. Gseee 
of this kind have sometimes been thought to belong to the 
head of oontributory negligence. But this, it is submitted, 
is an unwarrantable extension of the term, founded on a 
misapprehension of the true meaning and reasons of the 
doctrine; as if contributory negligence were a sort of 
positive wrong for which a man is to be punished. This, 
however, we shall have to consider hereafter. On the 
whole it may be doubted whether a mere civil wrong- 
doing, such as trespass to land, ever has in itself the effect 
now under consideration* Almost every case that can be 
put seems to fall just as well, if not better, under the 
principle that a plaintiff who has voluntarily exposed him- 
self to a known risk cannot recover, or the still broader 
rule that a defendant is liable only for those consequences 
of his acts which are, in the sense explained in a former 
chapter (A;), natural and probable. 

Oonflict of In America there has been a great question, upon which 
ISb^ ^ there have been many contradictory decisions, whether the 
^^^(^ violation of statutes against Sunday travelling is in itself 



SnndA^ a bar to actions for injuries received in the course of such 
travelling through defective condition of roads, negligence 
of railway companies, and the like. In Massachusetts 
(where the law has since been altered by statute), it was 
held that a plaintiff in such circumstances could not re- 
cover, although the accident might just as well have hap- 
pened on a journey lawful for all purposes. These decisions 
must be supported, if at all, by a strict view of the policy 
of the local statutes for securing the observance of Sunday. 
They are not generally considered good law, and have been 
expressly dissented from in some other States (/). 

(k) P. 32, above. (Wiaoonam, 1871) Bigelow L. 0. 

(Q Sutton Y, TotM of Wauwatosa 711, aad notes thereto, pp. 721-2; 



UNLAWFUL CONDUCT OF PLAINTIFF. ;165 

The principle now defined by the Supreme Court of Mas- 
sachusetts as generally applicable is that illegal conduct of 
the plaintiff which contributed directly and proximately to 
the injury suffered by him is equivalent, as matter of law, 
to contributory negligence (m). 

It is a rule not confined to actions on contracts that Oaiue of 
'' the plaintiff cannot recover where in order to maintain oonnected 
his Bupposed daim he must set up an iUegal agreement to ^^^ 
whioh he himself has been a party " (n) : but its applica- Bgiee- 
tion to actions of tort is not frequent or normal. The case 
from which the foregoing statement is cited is the only 
dear example known to the writer, and its facts were very 
peculiar. 

S, C. in Jer. Smith's Cases on (m) Newcomb y. BotUm FroUttive 

Torts, ii. 115, see note, ib.\ Cooley Depart. (1888), 146 Mass. 596, Jer. 

on Torts, 156. And see White y. Smith, op, eit. ii. 123. 

Zatiff, 128 Mass. 598; Bucher v. (») Mskvle J., livaz ▼. NiehoUe 

Chethire E. E, Co,, 125 U. S. 555. (1846) 2 C. B. 501, 512. 



166 



OHAPTEE V. 



OF RKTVrRDTKfl FOB TOKTS. 



Diyenity 
of reme- 
die0. 



At oommon law there were only two kinds of redress for 
an actionable wrong. One was in those oases — ezoeptional 
oases according to modem law and practice — where it was 
and is lawful for the aggrieved party, as the common 
phrase goes, to take the law into his own hands. The 
other way was an action for damages (a). Not that a 
suitor might not obtcdn, in a proper case, other and more 
effectual redress than money compensation ; but he could 
not have it from a court of common law. Specific orders 
and prohibitions in the form of injunctions or otherwise 
were (with few exceptions, if any) (b) in the hand of the 
Chancellor alone, and the principles according to which 
they were granted or withheld were counted among the 
mysteries of Equity. But no such distinctions exist under 
the system of the Judicature Acts, and every branch of 
the Court has power to administer eyery remedy. There- 



(a) Pofisession oould be reooYored, 
of course, in an action of ejectment. 
But this was an action of trespass 
in form only. In substanoe it took 
the place of tlie old real actions, 
and it is sometimes called a real 
aotion. Detinue was not onlj not 
a substantial exception, but hardly 
even a formal one, for the aotion 
was not really in tort. 

{b) I do not think any of the 
powers of the superior courts of 
common law to issue specific com« 



mands {$.ff, mandamus) were ap* 
plicable to the redress of purely 
private wrongs, though they might 
be available for a private person 
wronged by a breach of public 
duty. Under the Common Law 
Procedure Acts the superior courts 
of common law had limited powers 
of granting injunctions and ad- 
ministering equitable relief. These 
were found of little importance in 
practroe, and there is now no reason 
for dwelling on them. 






SELF-HELP. 167 

fore we haye at this day, in considering one and the same 
jnrisdiotion, to bear in mind the manifold forms of legal 
redress which for our predecessors were separate and un- 
connected incidents in the procedure of different courts. 

Bemedies available to a party by his own act alone may Self-help, 
be included, after the example of the long established 
German usage, in the expressive name of jfjf-hfifp . Thei 
right of private defeuce appears at first sight to be an 
obvious example of this. But it is not so, for there is no 
question of remedy in such a case. We are allowed to 
repel force by force " not for the redress of injuries, but] 
for their prevention " (c) ; not in order to undo a wrong! 
done or to get compensation for it, but to cut wrong short 
before it is done ; and the right goes only to the extent 
necessary for this purpose. Hence there is no more to be 
said of self-defence, in the strict sense, in this connexion. 
It is only when the party's lawful act restores to him 
something which he ought to have, or puts an end to a 
state of things whereby he is wronged, or at least puts 
pressure on the wroug-doer to do him right, that self-help 
is a true remedy. And then it is not necessarily a com- 
plete or exclusive remedy. The acts of this nature which 
we meet with in the law of torts are expulsion of a 
trespasser, retaking of goods by the rightful possessor, dis- 
tress damage feasant, and abatement of nuisances. Peace- 
able re-entry upon land where there has been a wrongful 
change of possession is possible, but hardly occurs in 
modem experience. Analogous to the right of retaking 
goods is the right of appropriating or retaining debts 
under certain conditions ; and various forms of lien are 
more or less analogous to distress. These, however, be- 
long to the domain of contract, and we are not now 

{e) This is well noted in Cooley on Torts, 50. 



168 RKMKOTEfl FOR T0RT8. 

oonoemed with them. Suoh are the speoies of remedial 
self-help recognized in the law of England. In every 
oaae alike the right of the party is subject to the role that 
no greater force must be used, or damage done to property, 
than is necessary for the purpose in hand. In some cases 
the mode of exercising the right has been specially modi- 
fied or regulated. Details will best be considered hereafter 
in relation to the special kinds of wrong to which these 
kinds of redress are applicable {d). 

Jndioial We pass, then, from extra-judicial to judicial redress, 
damages, from remedies by the act of the party to remedies by the 
act of the law. The most frequent and familiar of these 
is the awarding of damages {e), Wheneyer an actionable 
wrong has been done, the party wronged is entitled to 
recover damages; though, as we shall immediately see, 
this right is not necessarily a valuable one. His title to 
recover is a conclusion of law from the facts determined in 
the cause. How much he shall recover is a matter of 
judicial discretion, a discretion exercised, if a jury tries the 
cause, by the jury under the guidance of the judge. As 
we have had occasion to point out in a former chapter (/), 
the rule as to ^^ measure of damages " lb laid down by the 
Court and applied by the jury, whose application of it is, 
to a certain extent, subject to review. The grounds on 
which the verdict of a jury may be set aside are all 
reducible to this principle : the Court, namely, must be 
satisfied not only that its own finding would have been 
different (for there is a wide field within which opinions 
and estimates may fairly differ) (^), but that the jury did 

(iQ Gp. Blaokstone, Bk. iii. o. 1. work as ''Mayne on Damages.*' 
{e) It is hardly needful to refer (/) P. 27, aboye. 

ihe reader for fuller illustration of (jjf) The principle is familiar. 

the subject to so well known a See it stated, e.g. 6 Q. B. Diy. 85. 



DAMAGES. 169 

not exeroise a due jadioial diflcretion at all (A). Among 
these grounds are the awarding of manifestly excessiye or 
manifestly inadequate damages, such as to imply that the 
jury disregarded, either by exoess or by defect, the law laid 
down to them as to the elements of damage to be con- 
sidered (t), or, it may be, that the verdict represents a 
compromise between jurymen who were really not agreed 
on the main facts in issue (j). 

Damages may be nominal, ordinary, or exemplary. Nominal 
Nominal damages are a sum of so little value as compared ™*^^' 
with the cost and trouble of suing that it may be said to 
have ''no existence in point of quantity'' (^), such as a 
shilling or a penny, which sum is awarded with the pur- 
pose of not giving any real compensation. Such a verdict 
means one of two things. According to the nature of the 
case it may be honourable or contimielious to the plaintiff. 
Either the purpose of the action is merely to establish a 
right, no substantial harm or loss having been suffered, or 
else the jury, while unable to deny that some legal wrong 
has been done to the plaintiff, have formed a very low 
opinion of the general merits of his case. This again may 
be on the ground that the harm he suffered was not worth 
suing for, or that his own conduct had been such that 
whatever he did suffer at the defendant's hands was 
morally deserved. The former state of things, where the 
verdict reaUy operates as a simple declaration of rights 
between the parties, is most commonly exemplified in 
actions of trespass brought to settle disputed claims to 

(A) See Metropolitan B. Co, t. shown, a yerdict for 7000/. ma aet 

Wright (1886) 11 App. Ca. 152, aside on the ground of the damages 

55 L. J. Q. B. 401. being insoffioient. 

(i) FhiUips v. X. ^ 8, JT. JJ. Co. {J) Falvey v. Stanford (1874) L. 

(1879) 5 Q. B. Div. 78, 49 L. J. JB. 10 Q. B. 54, 44 L. J. Q. B. 7. 
Q. B. 233, where, on the facts {k) Manle J. 2 C. B. 499. 



170 



REMEDIES FOR TORTS. 



Nominal 
damsgfes 
possible 
oDly when 
an abso- 
lute right 
is in- 
fiing^. 



rights of way, rights of oommon, and other easements 
and profits. It is not unoommon to gire forty shillings 
damages in these oases if the plaintiff establishes his right, 
and if it is not intended to express any disapproval of his 
oonduot (/) . The other kind of award of nominal damages, 
where the plaintiff's demerits earn him an illusory sum 
such as one farthing, is illustrated chiefly by cases of 
defamation, where the words spoken or written by the 
defendant cannot be fully justified, and yet the plaintiff 
has done so much to provoke them, or is a person of such 
generally worthless character, as not to deserve, in the 
opinion of the jury, any substantial compensation (m). 
This has happened more than once in actions against the 
publishers of newspapers which were famous at the time, 
but have not found a place in the regular reports. 
Nominal damages may also be given where there has been 
some excess in generally justifiable acts of self-defence or 
self-help (n). 

The enlarged power of the Court over costs since the 
Judicature Acts has made the question of nominal damages, 
which, imder the old procedure, were described as '^ a mere 
peg on which to hang costs " (o), much less important 



{I) Under the yariona statatea as 
to costs which were in force before 
the Judicature Acts, iOs. was, sub- 
ject to a few exceptions, the least 
amount of damages which carried 
oosts without a special certificate 
from the judgpe. Frequently- juries 
asked before giying their yerdict 
what was the least sum that would 
cany costs: the general practice 
of the judg^ was to refuse this 
information. 

(m) Kelly Y. Shsrloek (1866) L. R. 
1 Q. B. 686, 85 L. J. Q. B. 209, is 
a oaae of this kind where, notwith- 



standing that the libels sued for 
were very gross, the jury gave a 
farthing damages, and the Court, 
though not satisfied with the ver- 
dict, refused to disturb it. 

(n) Harrison y. Duke of Rutland^ 
'93, I Q. B. 142, 62 L. J. Q. B. 
117, 4 R. 156, C. A. 

(o) By Maule J. (1846), in Beau- 
mont T. Greatheadf 2 G. B. 499. 
Under the present procedure costs 
are in the discretion of the Court ; 
the oosts of a cause tried by jury 
follow the eyent (without regard 
to amount of damages) nnleas the 



NOMraAL DAMAGES. 171 

than it formerly was. But the poasibility of recovering 
nominal damages is still a test, to a certain extent, of the 
nature of the right claimed. Infringements of absolute 
rights like those of personal security and property give a 
cause of action without regard to the amount of harm 
done, or to there being harm estimable at any substantial 
sum at all. As Holt G. J. said in a celebrated passage of 
his judgment iri J^of^^^j^ fpr^tV/t (^) ^ «ei damage is )wt merely 

pecuniary^ but an injury imports a damage^ token a man is 
thereby hindered of his right. As in an action for slanderous 
words, though a man does not lose a penny by reason of 
the speaMng them, yet he shall have an action. So if a 
man gives another a cuff on the ear, though it cost 
him nothing, no not so much as a little diachylon^ yet 
he shall have his action, for it is a personal injury. So 
a man shall have an action against another for riding 
over his ground, though it do him no damage ; for it is 
an invasion of his property, and the other has no right to 
come there." 

On the other hand, there are cases even in the law of Cases 
property where, as it is scdd, damage is the gist of the damage is 
action, and there is not an absolute duty to forbear from ^ Stion 
doing a certain thing, but only not to do it so as to cause 
actual damage. The right to the support of land as 
between adjacent owners, or as between the owner of the 
surface and the owner of the mine beneath, is an example. 
Here there is not an easement, that is, a positive right to 
restrain the neighbour's use of his land, but a right to the 

judge or the Court otherwise orders : 48 L. J. Ez. 186 . A sketoh of the 

Order LXY. r. 1, &c. The effect history of the subject is given in 

of the Jodicatnre Acts and Rules Lord Blackbom's judgment, pp. 

of Court in abrogating the older 962 tqq. 

statutes was settled in 1878 by {p) 2 Lord Baym. at p. 955. 
Oamett v. Bradky^ 3 App. Oa. 94^ 



^2 BBMEa)IE8 FOR T0ET8. 

undisturbed enjoyment of one's own. My neighbour may 
excavate in his own land as much as he pleases, unless and 
until there is actual damage io mine : then, and not till 
then, a cause of action arises for me (q). Negligence, 
again, is a cause of action only for a person who suffers 
actual harm by reason of it. A man who rides furiously 
in the street of a town may thereby render himself liable 
to penalties under a local statute or by-law ; but he does 
no wrong to any man in particular, and is not liable to a 
civil action, so long as his reckless behaviour is not the 
cause of specific injury to person or property. The same 
rule holds of nuisances. So, in an action of deceit, the 
cause of action is the plaintiff's having suffered damage by 
acting on the false statement made to him by the defen- 
dant (r). In all these cases there can be no question of 
nominal damages, the proof of real damage being the 
foundation of the plaintiff's right. It may happen, of 
course, that though there is real damage there is not much 
of it, and that the verdict is accordingly for a small 
amount. But the smallness of the amount will not make 
such damages nominal if they are arrived at by a real 
estimate of the harm suffered. In a railway accident due 
to the negligence of the railway company's servants one 
man may be crippled for Uf e, while another is disabled for 
a few days, and a third only has his clothes damaged to 
the value of five shillings. Every one of them is entitled, 
neither more nor less than the otherSy to have amends 
according to his loss. 



{q) BaekhouH y. Boncmi (1861) 9 Man. & G. 63, is Bometimes'qnoted 

H. L. G. 503, 34 L. J. Q. B. 181 ; aa if it were an authority that no 

Darley Main Colltery Co. y. Mitchell aotual damage is neoessary to sna- 

(1886) 11 App. Oa. 127, 65 L. J. tain an action of deodt. But 

Q. B. 629. careful examination will show that 

(r) F^ifix T. Si^nold (1841) 3 it la far from dedding thia. 



MEASURE OF DAMAGEg. 



173 



' In the law of slander we have a ooriously fine line Feoolia- 
between absolute and conditional title to a legal remedy ; ^ defama- 
some kinds of spoken defamation being actionable without ^^^^' 
any allegation or proof of special damage (in which case 
the plaintiff is entitled to nominal damages at least), and 
others not ; while as to written words no such distinction 
is made. The attempts o£ text-books to give a rational 
theory of this are not satisfactory. Probably the existing 
condition of the law is the result of some obscure historical 
accident («)• 

Ordinary damages are a sum awarded as a fair measure Ordinaiy 
of compensation to the plaintiff, the amount being, as near *^s^' 
as can be estimated, that by which he is the worse for the 
defendant's wrong-doing, but in no case exceeding the 
amount claimed by the plaintiff himself {t). Such amoxmt 
18 not necessarily that which it would cost to restore the 
plaintiff to his former condition. Where a tenant for 
years carried away a large quantity of valuable soil from 
his holding, it was decided that the reversioner could 
recover not what it would cost to replace the soil, but only . 
the amount by which the value of the reversion was 
diminished {u). In other wor ds co mpensation, not resti - 
tutio n, is the proper test . Beyond this it is hardly 



(«) See more in Oh. VII. bebw. 

{t) A jniy has beea known to 
find a verdict for a greater Bom 
than was claimed, and the judge to 
amend the statement of olaim to 
enable himself to give judgment 
for that greater sum. But this is 
an extreme use of the power of 
the Court, justifiable only in an 
extraordinary case. '*It will not 
do for Mr. Justioe Kay, or for this 
Court,, to exercise that unknown 



equity which is sometimes exer- 
cised by juries:" Cotton L. J., 
Dreyftu y. Fentvian Ouano Co. 
(1889) 43 Ch. DiT. 316, 327, 62 L. 
T. 618. 

{u) frhithamY.Kerihaw{lSS6-6) 
16 Q. B. DiT. 613, 64 L. T. 124 ; 
cp. Must y. Victoria Graving Dock 
Co. (1887) 36 Ch. Div. 113, 66 L.T. 
216; Chiffcriel v. ^a/<oit (1888) 40 
Ch. D. 45, 68 L. J. Ch. 137 (com- 
pensation under conditions of sale). 



174 RKMKDTEfl FOB TOBTfl. 

possiUe to lay down any Tmiversal role for asoertaining 
the amount, the oauses and circiunstanoes of actionable 
damage being infinitely yariouB. And in partioulaT olasses 
of cases only approximate generalization is possible. In 
proceedings for the recovery of specific property or its 
value there is not so much difficulty in assigning a 
measure of damages, though here too there are unsettled 
points (f^). But in cases of personal injury and conse- 
quential damage by loss of gains in a business or profession 
it is not possible either completely to separate the elements 
of damage, or to found the estimate of the whole on any- 
thing like an exact calculation (x). There is little doubt 
that in fact the process is often in cases of this class even 
a rougher one than it appears to be, and that legally 
irrelevant circumstances, such as the wealth and condition 
in life of the parties, have much influence on the verdicts 
of juries : a state of things which the law does not recog- 
nize, but practically tolerates within large bounds. 

Exem- One step more, and we come to cases where there is 

damages, great injury without the possibility of measuring compen- 
sation by any numerical rule, and juries have been not 
only allowed but encouraged to give damages that express 
indignation at the defendant's wrong rather than a value 
set upon the plaintiff's loss. Damages awarded on this 
principle are called exemplary or vindictive. The kind of 
wrongs to which they are applica ble are those which , 
besides the violation of a right or thfl p^"**^ Aarr^agi^ 
import insult or outrage, and so are not merely injuries 
but iniuriae in the strictest Soman sense of the term. 

(«) See Mayne on Damages, 6th (1879) 6 Q. B. Div. 78, 49 L. J. 

ed. 0. 13. Q. B. 233, which waa in the main 

(x) See the somming-np of Field approved bj the Ooort of AppeaL 
J. in Fh%aip$ y. X. # 8. W. B. Go. 



EXEMPLARY DAMAGES. 

The Greek Sfipir perhaps denotes with still greater exactness 
the quality of the acts which are thus treated. An assault 
and false imprisonment under colour of a pretended right 
in breach of the general law, and against the liberty of the 
subject {p) ; a wanton trespass on land, persisted in with 
Tiolent and intemperate behaviour (s) ; the seduction of a 
man's daughter with deliberate fraud, or otherwise under 
circumstances of aggravation {a) ; such are the acts which, 
with the open approval of the Courts, juries have been in 
the habit of visiting with exemplary damages. Gross de- 
famation should perhaps be added ; but there it is rather 
that no definite principle of compensation can be laid 
down than that damages can be given which are distinctly 
not compensation. It is not found practicable to interfere 
with juries either way (i), unless their verdict shows 
manifest mistake or improper motive. There are other 
miscellaneous examples of an estimate of damages coloured, 
so to speak, by disapproval of the defendant's conduct (and 
in the opinion of the Court legitimately so), though it 
be not a case for vindictive or exemplary damages in the 
proper sense. In an action for trespass to land or goods 
substantial damages may be recovered though no loss or 

(y) Jffuekle y. Monej/ (1763) 2 mth oaths and threats, on joining 

Wilfl. 205, one of the branohes of in the sport ; a yerdiot passed for 

the gte&t oase of general warrants : 500/., the fuU amount claimed, and 

the plaintifE was detained about it was laid down that juries ought 

six hours and ciTilly treated, to be allowed to punish insult by 

« entertained with beef -steaks and exemplary damages, 
beer," but the jury was upheld {a) Tullidge y. Wade (1769) 3 

in giving 300/. damag^es, because Wils. 18: ** Actions of this sort 

*Mt was a most daring public are brought for example's sake." 
attack made upon the liberty of {b) See F(n-»dik$ y. 8Une (1868) 

the subject." L. R. 8 0. P. 607, 37 L. J. C. P. 

(») Mersit y. Harvey (1814) 5 301, where a yerdiot for 1«. was 

Taunt. 442, 15 B. B. 548 : the not disturbed, though the imputa- 

defendant was drunk, and passing tion was a gross one ; op. KeUy y. 

by the plaintiff's land on which Sherloek, p. 170, note (m), above, 
the plaintifl waa shooting, insisted, 



176 



176 EEHEDIES FOB T0RT8. 

diminution in value of property may hare oooaired ((?). 
In an aotion for negligently pulling down buildings to an 
adjacent owner's damage, evidence has been admitted that 
the defendant wanted to disturb the plaintiff in his occu- 
pation, and purposely caused the work to be done in a 
reckless manner : and it was held that the judge might 
properly authorize a jury to take into consideration the 
words and conduct of the defendant ^' showing a contempt 
of the plaintiff's righta and of his convenience" (d). Sub- 
stantial damages have been allowed for writing disparaging 
words on a paper belonging to the plaintiff, although there 
was no publication of the libel (e). 

** It is imiversally felt by all persons who have had occa- 
sion to consider the question of compensation, that there is 
a difference between an injury which is the mere result of 
such negligence as amounts to little more than accident, 
and an injury, wilful or negligent, which is accompanied 
with expressions of insolence. I do not say that in actions 
of negligence there should be vindictive damages sudi as 
are sometimes given in actions of trespass, but the measure 
of damage should be different, according to the nature of 
the injury and the circumstances with which it is accom- 
panied" (/). 

The case now cited was soon afterwards refeired to by 
Willes J. as an authority that a jury might give ex- 
emplary damages, though the action was not in trespass, 
from the character of the wrong and the way in which it 
was done {g) . 

(0) Per Denman C. J. in Ex. Ch., (/) Pollobk G. B. 6 H. & N. 68, 

Bofer$ Y. Spence, 13 M. & W. at p. 80 L. J. Ex. 72. Cp. per Bowen 

681, 16 L. J. Ex. 49. L. J. in Vhitham y. Kerthaw (1886) 

{d) Emblm t. Myen (1860) 6 H. 16 Q. B. Diy. at p. 618. 
k N. 64, 30 L. J. Ex. 71. is) Bell y. Midland It. Co, (1861) 

(e) Wennhak y. Morgan (1888) 20 10 C. B. N. 8. 287, 307, 30 L. J. 

Q. B. D. 635, 67 L. J. Q. B. 241. 0. P. 273, 281. 



DISTINCT CAUSES OF ACTION. 177 

The action for breach of promise of marriage, being an Analogy 
action of contract, is not within the scope of this work ; of promise 
but it has curious points of aflBnity with actions of tort in ^f ™*r 

• . , nagpe to 

its treatment and incidents ; one of which is that a very torts in 
large discretion is given to the jury as to damages (A). speot. 

As damages may be aggravated by the defendant's ill- Mitiga- 
behavionr or motives, so they may be reduced by proof of damages, 
provocation, or of his having acted in good faith : and 
many kinds of circumstances which will not amount to 
justification or excuse are for this purpose admissible and 
material. '' In all cases where motive may be ground of 
aggravation, evidence on this score will also -be admissible 
in reduction of damages "(t). For the rest, this is an 
affair of common knowledge and practice rather than of 
reported authority. 

^' Damages resulting from one and the same cause of Concnr- 
action must be assessed and recovered once for all " ; but severable 
where the same facts give rise to two distinct causes of atti^.° 
action, though between the same parties, action and judg- 
ment for one of these^ causes will be no bar to a subsequent 
action on the other. A man who has had a verdict for 
personal injuries cannot bring a fresh action if he after- 
wards finds that his hurt was graver than he supposed. 
On the other hand, trespass to goods is not the same cause 
of action as trespass to the person, and the same principle 
holds of injuries caused not by voluntary trespass, but by 
negligence; therefore where the plaintiff, driving a cab, was 
run down by a van negligently driven by the defendant's 
servant, and the cab was damaged and the plaintiff suffered 
bodily harm, it was held that after suing and recovering 

(A) See, e.ff.y Berry v. Da Costa the present work, ad Jin. 
(1866) L. B. 1 G. P. 331, 35 L. J. (t) Mayne on Damages, 119 

C. P. 191 ; and the last chapter of (5th ed.). 

P. N 



178 



REMEDIES FOB TORTS. 



for the damage to the oab the plaintiff wsis free to bring a 
separate action for the personal injury (A;). Apart from ques- 
tions of form, the right to personal seouritj certainly seems 
distinct in kind from the right to safe enjoyment of one's 
goods, and such was the view of the Roman lawyers (/). 



Injano- 
tions. 



Another remedy which is not, like that of damages, 
universally applicable, but which is applied to many kinds 
of wrongs where the remedy of damages would be in- 
adequate or practically worthless, is the granting of an 
injunction to restrain the commission of wrongful acts 
threatened, or the continuance of a wrongful course of 
action abeady begun. There is now no positive limit to 
the jurisdiction of the Court to issue injunctions, beyond 
the Court's own view (a judicial view, that is) of what is 
just and convenient {m). Practically, however, the lines of 
the old equity jurisdiction have thus far been in the main 
preserved. The kinds of tort against which this remedy 
is commonly sought are nuisances, violations of specific 
rights of property in the nature of nuisance, such as 
obstruction of light and disturbance of easements, continu- 
ing trespasses, and infringements of copyright and trade- 
marks. In one direction the High Court has, since the Judi- 
cature Acts, distinctly accepted and exercised an increased 
jurisdiction. It will now restrain, whether by final (») or 



{k) Brunsden v. Humphrey (1884) 
14 Q. B. Div. 141, 63 L. J. Q. B. 
476, bj Brett M. R. and Bowen 
L. J., diss. Lord Ck>leridge C. J. 
Gp. per Lord Bramwell, 11 App. 
Ga. at p. 144. 

(/) Liber homo BUD nomine utilem 
Aqoiliae habet actionem : directam 
enim non habet, quoniam dominus 
membrorom Buoriun nemo Tidetur : 
TJlpian, D. 9. 2, ad 1. Aquil. 



13 pr. 

(m) Judicature Act, 1873, b. 25, 
Bub-B. 8. Per Jessel M. R., Bed^ 
doto y. Beddow (1878) 9 Gh. D. 89, 
93, 47 L. J. Gh. 688 ; QuarU Hill 
ic. Co. V. Beall (1882) 20 Gh. Diy. 
at p. 607. 

(«) ThorUy^s Cattle Food Co. T. 
Massam (1880) 14 Gh. Dir. 763 ; 
Thomas v. WiUiams, ib. 864. 



INJUNCTIONS. 



179 



interlocutoiy (o) mjunotion, the publication of a libel or, 
in a dear case, the oral uttering of slander (p) calculated 
to injure the plaintifE in his business. In interlocutory 
proceedings, however, this jurisdiction is exercised with 
caution (o), and only in a very clear case (q), and not 
where the libel, however unjustifiable, does not threaten 
immediate injury to person or property (r). 

The special rules and principles by which the Court is On what 
guided in administering this remedy can be profitably grant^. 
discussed only in connexion with the particular causes of 
action upon which it is sought. All of them, however, 
are developments of the one general principle that an 
injunction is granted only where damages would not be 
an adequate remedy, and an interim injunction only 
where delay would make it impossible or highly difiicult 
to do complete justice at a later stage (s). In practice | 
very many causes were in the Court of Chancery, and! 
still are, really disposed of on an application for an* 
injunction which is in form interlocutory: the proceedings 
being treated as final by consent, when it appears that the 
decision of the interlocutory question goes to the merits of 
the whole case. 

In certain cases of fraud (that is, wilfully or recklessly Former 
false representation of fact) the Court of Chancery had juiifldic- 



(0) Quartz HiU Contolidated Gold 
Mininff Co, v. Beall (1882) 20 Ch. 
DiT. 601, 61 L. J. Ch. 874 ; CoUitrd 
V. MarahaUy '92, 1 Ch. 671, 61 L. J. 
Ch. 268. 

{p) Eermann Looff Y. Bean {ISSi) 
26 Ch. Diy. 306, 63 L. J. Ch. 1128. 

{q) JBonnard t. Fsrrytnan, *91, 
2 Ch. 269, 60 L. J. Oh. 617, 0. A. 

(r) Saiomotu v. Xnimht, '91, 2 
Ch. 294, 60 L. J. Ch. 743, C. A. 



(«) In Mogul Steamship Co. y. 
McGregor, Goto ^ Co. (1886) 16 
Q. B. D. 476, 64 L. J. Q. B. 640, 
.the Court refoBed to grant an in- 
terloontorj injunction to restrain 
a oourse of conduot alleged to 
amount to a conspiracy- of rival 
shipowners to drive the plaintiffs' 
ships out of the China trade. The 
decision of the case on the merits 
18 dealt with elsewhere. 



n2 



180 



REMEDIES FOR TORTS. 



Uonof before £he Jadioaiore Acts oonourrent jurisdiotion with 
Uwood the courts of oommon law, and would award peouuiary 
2ve*com- compensation, not in the name of damages, indeed, but by 
pensatira -^ay of restitution or "making the representation good" (t). 
In substanoe, howerer, the relief oame to giTing damages 
under another name, and with more nicety of calculation 
than a jury would have used. Since the Judicature Acts 
it does not appear to be material whether the relief 
administered in such a case be called damages or restitu- 
tion ; unless indeed it were contended in such a case that 
(according to the rule of damages as regards injuries to 
property) (u) the plaintiff was entitled not to be restored 
to his former position or have his just expectation fulfilled, 
but only to recoyer the amount by which he is actually the 
worse for the defendant's wrong-doing. Any contention 
of that kind would no doubt be effectually excluded by 
the authorities in equity ; but even without them it would 
scarcely be a hopeful one. 



Special 

Btatutory 

remedieSi 

when 

ezoliifliYe. 



Duties of a public nature axe constantly defined or 
created by statute, and generally, though not invariably, 
special modes of enforcing them are provided by the same 
statutes. Questions have arisen as to the rights and 
remedies of persons who suffer special damage by the breach 



(0 BumncM t. Lock (1806) 10 
Vee. 470, S R. R. 33, 866 ; Slim y. 
Croueher (I860) 1 D. F. J. 618, 29 
L. J. Ch. 273 (these cases are now 
dted only as historical illnstratioD) ; 
Ftek T. Oumey (1871-3) L. R. 13 
£q. 79, 6 H. L. 377, 43 L. J. Ch. 
19. See under the head of Deceit, 
Ch. VIII. below. 

(m) Jonet y. Oooday (1841) 8 M. 
ft W. 146, 10 L. J. Ex. 275; 
Wigsell y. School for Indigent Blind 
(1882) 8 Q. B. D. 367, 51 L. J. 



Q. B. 330; JThiiham y. Kerthaw 
(1886-6) 16 Q. B. Diy. 613. In 
an action for indncing the plaintiff 
by false statements to take shares 
in a company, it is said that the 
measure of damages is the dif- 
ference between the sum paid for 
the shares and their real yalae (the 
market yalue may, of course, haye 
been fictitious) at the date of allot- 
ment: Peek y. Deny (1887) 37 Ch, 
Diy. 591, 57 L. J. Ch. 347. 



STATUTORY DUTIES. 181 

or non-performanoe of such duties. Here it is material 
(though not necessarily decisive) to observe to whom and 
in what form the specific statutory remedy is given. If 
the Legislature, at the same time that it creates a new 
duty, points out a special course of private remedy for the 
person aggrieved (for example, an action for penalties to 
be recovered, wholly or in part, for the use of such person), 
then it is generally presumed that the remedy so provided 
was intended to be, and is, the only remedy. The pro- 
vision of a public remedy without any special means of 
private compensation is in itself consistent with a person 
specially aggrieved having an independent right of action 
for injury caused by a breach of the statutory duty (v). 
And it has been thought to be a general rule that where 
the statutory remedy is not applicable to the compensation 
of a person injured, that person has a right of action (tr). 
But the Court of Appeal has repudiated any such fixed 
rule, and has laid down that the possibility or otherwise of 
a private right of action for the breach of a public statu- 
tory duty must depend on the scope and language of the 
statute taken as a whole. A waterworks company was 
bound by the Waterworks Clauses Act, 1847, incorporated 
in the company's special Act, to maintain a proper 
pressure in its pipes, under certain public penalties. It 
was held that an inhabitant of the district served by the 
company under this Act had no cause of action against 
the company for damage done to his property by fire by 
reason of the pipes being insufficiently charged. The 
Court thought it unreasonable to suppose that Parliament 



(v) Mo89 Y. Mugge-Price (1876) 1 cattle Waterworkt Co, (1871) L. B. 

Ex. D. 269, 45 L. J. Ex. 777 : but 6 Ex. 404, afterwards reversed in 

gu. whether this case can now be the Ck)iirt of Appeal (see below), 
relied on; it was decided partly on (to) Coueh t. Steel (1854) 3 E. & 

the authority of Atkinton y. New- B. 402, 23 L. J. Q. B. 121. 



182 



REMEDIES FOB TORTS. 



intended to make the company insurers of all property 
that might be burnt within their limits by reason of 
deficient supply or pressure of water {w). 

Ko private AIso the harm in respeot of which an action is brought 
unless the f or the breach of a statutory duty must be of the kind 
suffered is ^^oh the statute was intended to prevent. If cattle being 
within the carried on a ship are washed overboard for want of 

I mischief ^ 

aimed at appliances prescribed by an Act of Parliament for purely 
hv the 

statute, sanitcuy purposes, the shipowner is not liable to the owner 

of the cattle by reason of the breach of the statute (x) : 
though he will be liable if his conduct amounts to negli- 
gence apart from the statute and with regard to the duty 
of safe carriage which he has undertaken (y), and in an 
action not founded on a statutory duty the disregard of 
such a duty, if likely to cause harm of the kind that has 
been suffered, may be a material fact (z). 

Joint Where more than one person is concerned in the oom- 

doen^m&j missiou of a wrong, the person wronged has his remedy 

ioinO^or ^K*''^'^^* *^ ^^ ^^7 ^^^ ^^ moTe of them at his choice. 
seYeraliy : Every wrong-doer is liable for the whole damage, and it 



(<r) Atkinson y. Ifetceastle Water' 
workt Co. (1877) 2 Ex. Div. 441, 
46 L. J. Ex. 776. Cp. Stevens y. 
Jeacocke (1847) 11 Q. B. 731, 17 
li. J. Q. B. 163, where it was held 
that the local Act reg^ating, under 
penalties, the pilchard fishery of St. 
Ives, Cornwall, did not create pri- 
yate rights enforceable by action ; 
Vestry of St, Fanci'os y. Batterhury 
(1867) 2 C. B. N. S. 477, 26 L. J. 
0. P. 243, where a statutory pro- 
yision for recovery by summary 
prooeedings was held to exclude 
any right of action (here, howeyer, 
no private damage was in ques- 



tion) ; and VaUance y. Falls (1884) 
13 Q. B. D. 109, 63 L. J. Q. B. 
469. See further, as to highways, 
Cowley y. Ifetctnarket Local Board, 
'92, A. 0. 346, 67 L. T. 486; 
Thompson y. Mayor of Brighton^ 
Oliver y. Local Board of Horsham, 
'94, 1 Q. B. 332, 9 B. Feb. 173, 
C. A. 

{x) Gorris y. Scott (1874) L. R. 9 
Ex. 126, 43 L. J. Ex. 92. 

(y) See per Pollock B., L. R. 9 
Ex. at p. 131. 

{z) Blamires y. Lane, and York' 
shire M. Co. (1873) Ex. Oh. L. R. 
8 Ex. 283, 42 L. J. Ex. 182. 



^ 



CONTRIBUTION BETWEEN WEONG-DOEES. 183 

does not matter (as we saw above) (a), whether they acted, 
as between themselves, as equals, or one of them as agent 
or servant of another. There are no degrees of responsi- 
bility, nothing answering to the distinction in criminal law 
between principals and accessories. But when the plaintifi but judg- 
in such a case has made his choice, he is concluded by it. against 
After recovering judgment against some or one of the J^?^^ 
joint authors of a wrong, he cannot sue the other or *<^on. 
others for the same matter^ evfin^jOhe jwdgCPSJ^t in the 



first action remains unsatisfied. By that judirment the 
cause of action ^^ transit m rem iudicatam," and is no 
longer available (6). The reason of the rule is stated to 
be that otherwise a vexatious multiplicity of actions would 
be encouraged. 



As between joint wrong-doers themselves, one who has Bules as 
been sued alone and compelled to pay the whole damages but^nand 
has no right to indemnity or contribution from the "^demmty. 
other {c)y if the nature of the case is such that he ^'must 
be presumed to have known that he was doing an unlawful 
act"(<;?). Otherwise, " where the matter is indifferent in 
itself," and the wrongful act is not clearly illegal (e), but 
may have been done in honest ignorance, or in good faith 
to determine a claim of right, there is no objection to 
contribution or indemnity being claimed. '' Every man 



(a) Page 87. 

(b) JBrituiMod y. Marriion (1872) 
Ex. Oh. L. R. 7 0. P. 547, 41 L. J. 
C. P. 190, finally settled the point. 
It was f oimerly doabtful whether 
judgment with'ont satisfaotion was 
a bar. And in the United States 
it seems to be generally held that 
it is not : Gooley on Torts, 138, and 
see L. R. 7 G. P. 549. 

(c) Menyweather v. Nixan (1799) 
8 T. B. 186, 16 B. B. 810, where 



the doctrine is too widely laid down. 

{d) Adanuon y. Jarvi* (1827) 4 
Bing. at p. 73. This qnalification 
of the supposed rule in Menryiceather 
y. Nixan is strongly confirmed by 
the dicta, especially Lord Her- 
8ohell*s, in Palmer y. Wiek and 
Fulteneytoum Steam Shipping Co,, 
'94, A. C. 318, 324, 6 B. Aug. 39. 
The actual decision was that no 
such rule exists in Scotland. 

{e) BetU T. Gibbint, 2 A. & E. 57. 



184 



REMV.DTE8 FOB TORTS. 



who emplojB another to do an act which the employer 
appears to have a right to authorize him to do undertakes 
to indemnify him for all suoh acts as would be lawful if 
the employer had the authority he pretends to have." 
Therefore an auctioneer who in good faith sells goods in 
the way of his business on behalf of a person who turns 
out to have no right to dispose of them is entitled to be 
indemnified by that person against the resulting liability 
to the true owner (/). And persons entrusted with goods 
as wharfingers or the like who stop delivery in pursuance 
of their principal's instructions may claim indemnity if the 
stoppage turns out to be wrongful, but was not obviously 
so at the time (g). In short, the proposition that there is 
no contribution between wrong-doers must be understood 
to affect only those who are wrong-doers in the common 
sense of the word as well as in law. The wrong must be 
so manifest that the person doing it could not at the time 
reasonably suppose that he was acting imder lawful 
authority. Or, to put it summarily, a wrong-doflr by ]^ir« 
adv^ytiiTft ifl entitled to indemnity f rom ^ any person under 
whose apparent a uthority he a cted in good fait hj a wilful 
or negligent (h) wrong-doer h as no claim to c o ntribu t ion 
or indemnity. There does not appear any reason why 
contribution should not be due in some cases without any 
relation of agency and authority between the parties. If 
several persons undertake in concert to abate an obstruc- 
tion to a supposed highway, having a reasonable claim of 



(/) Adamwn v. Jarvia (1827) 4 
fiing. 66, 72. The ground of the 
actdon for indemnity may be either 
deceit or warranty : see at p. 73. 

Gf) JBetU y. Oibbint (1834) 2 A. 
& E. 67. See too Coliint y. Evans 
(1844) (Ex. Gh.) 6 Q. B. at p. 830, 
13 L. J. Q. B. 180. 

(A) I am not sure that authority 
oovers this. But I do not think 



an agent oould claim indemnity 
for acta which a reasonable man in 
his place would know to be beyond 
the lawful power of the principal. 
Bee Indian Contract Act, s. 223. 
The peculiar statutory liability 
created by the Directors' Liability 
Act, 1890, is qualified by a right 
to reooyer contribution in aU cases, 
see B. V. 



TRESPASS AKD FELONY. 



185 



right and acting in good faith for the purpose of trying 
the right, and it turns out that their claim cannot be 
maintained, it seems oontraiy to principle that one of 
them should be compellable to pay the whole damages and 
costs without any recourse over to the others. I cannot 
find, however, that any decision has been given on facts 
of this kind ; nor is the question very likely to arise, as 
the parties would generally provide for expenses by a sub- 
scription fund or guaranty. 

It has been currently said, sometimes laid down, and Supposed 
once or twice acted on as established law, that when the treepaaa 
facts affording a cause of action in tort are such as to cfmOTired 
amount to a felony, there is no civil remedy against the in felony, 
felon (t) for the wrong, at all events before the crime has 
been prosecuted to conviction. And as, before 1870 (y), a 
convicted felon's property was forfeited, there would at 
common law be no effectual remedy afterwards. So that 
the compendious form in which the rule was often stated, 
that " the trespass was merged in the felony," was sub- 
stantially if not technically correct. But so much doubt 
has been thrown upon the supposed rule in several recent 
cases, that it seems, if not altogether exploded, to be only 
awaiting a decisive abrogation. The result of the cases in 
question is that, although it is difficult to deny that some 
such rule exists, the precise extent of the rule, and the 
reasons of policy on which it is founded, are imcertain, and 
it is not known what is the proper mode of applying it. 



(t) It is settled that tiiere is no 
rale to preyent the suing of a 
person who was not party or privy 
to the felony. Stolen goods, or 
their Talue, e. g. can be recoyered 
from an innocent possessor who 
has not bought in market overt, 
whether the thief has been proee- 
cated or not: Marth y. Keating 



(1834) 1 Bing. N. 0. 198, 217; 
JFhits y. Spettigue (1845) 13 M. k 
W. 603, 14 L. J. Ex. 99. In these 
oases indeed the cause of action is 
not the offence itself, but some- 
thing else which is wroogful be- 
cause an offence has been odm- 
mitted. 

C;) 33 & 34 Vict. c. 23. 



186 



REMEDIES FOB TORTS. 



As to the rale, the best supported version of it appears to 
be to this effect: Where the same facts amount to a felony 
and are such as in themselves would constitute a civil wrong, 
a cause of action for the civil wrong does arise. But the 
remedy is not available for a person who might have pro- 
secuted the wrong-doer for the felony, and has failed to do 
so. The plaintiff ought to show that the felon has actually 
been prosecuted to conviction (by whom it does not matter, 
nor whether it was for the same specific offence), or that 
prosecution is impossible (as by the death of the felon or 
his immediate escape beyond the jurisdiction), or that he 
has endeavoured to bring the offender to justice, and has 
failed without any fault of his own (k), 

Ko known It is admitted that when any of these conditions is 
enforcing Satisfied there is both a cause of action and a presently 
indeed It available remedy. But if not, what then P It is said to 
®^*** be the duty of the person wronged to prosecute for the 
felony before he brings a civil action; "but by what 
means that duty is to be enforced, we are nowhere in- 
formed " (/). Its non-performance is not a defence which 
can be set up by pleading (m), nor is a statement of claim 
bad for showing on the face of it that the wrongful act 
was felonious (n). Neither can the judge nonsuit the 
plaintiff if this does not appear on the pleadings, but comes 
out in evidence at the trial (o). It has been suggested 
that the Court might in a proper case, on the application 



(k) See the jndgment of Bag- 
gsilaj L. J. in £x parU Ball (1879) 
10 Ch. Div. at p. 673. For the 
difficulties see per Bramwell L. J., 
ib, at p. 671. 

(/) Luflh J.y Wells y. Abrahamt 
(1872) L. R. 7 Q. B. at p. 563. 

(m) Blaokbom J. ibid. 

(n) Roope v. D'Avigdor (1883) 10 
Q. B. D. 412, op. Midland Insuf' 



anee Co, y. Smith (1881) 6 Q. B. D. 
561, 60 L. J. Q. B. 329. 

(o) IFelUy.Abrahanu {1872)1,,^. 
7 Q. B. 554, 41 L. J. Q. B. 306, 
dissenting from Welloek y. Constan' 
tine (1863) 2 H. & G. 146, 32 L. J. 
Ex. 285, a very indeoisiye case, bat 
the nearest approach to an authority 
for the enforcement of the supposed 
rule in a oourt of common law. 



LOCAL EXTENT OF JUBISDICTION. 



187 



of the Grown or otherwise, exercise its summary jurisdic- 
tion to stay proceedings in the civil action {p) : but there 
is no example of this. Whatever may be the true nature 
and incidents of the duty of the wronged party to 
prosecute, it is a personal one and does not extend to a 
trustee in bankruptcy (q), nor, it is conceived, to executors 
in the cases where executors can sue. On the whole there 
is apparent in quarters of high authority a strong though 
not unanimous disposition to discredit the rule as a mere 
cantilena of text-writers founded on ambiguous or misap- 
prehended cases, or on dicta which themselves were open 
to the same objections (r). At the same time it is certain 
that the judges consulted by the House of Lords in 
Marsh v. Keating (s) thought such a rule existed, though 
it was not applicable to the case in hand ; and that in 
JSx parte Elliott {t) it was effectually applied to exclude a 
proof in bankruptcy. 

Lastly we have to see imder what conditions there may Locality 
be a remedy in an English court for an act in the nature fui^t^^" 
of a tort committed in a place outside the territorial juris- ^^^^y^9 

*■ * remedy in 



(p) Blackbnm J., L. B. 7 Q. B. 
at p. 669. In a later Lriah case, 
8. V. 8. (1882) 16 Cox, 666, it was 
said that, in a proper case, the 
Court might stay tlie action of its 
own motion ; and one member 
thought the case before them a 
proper one, but the majority did 
not. 

{q) Ex parU Ball (1879) 10 Ch. 
D. 667, 48 L. J. Bk. 67. 

(f ) See the historical discussion 
in the judgment of Blackburn J. 
in Wells y. Abrahamt, L. R. 7 
Q. B. 660, tqq. And see per 
Maule J. in JTard v. Zlotfd (1843) 
7 Scott N. B. 499, 607, a case of 



alleged compounding of felony : 
" It would be a strong thing to 
say that every man is bound to 
prosecute all the felonies that come 
to his knowledge; and I do not 
know why it is the duty of the 
party who suffers by the felony to 
prosecute the felon, rather than 
that of any other person : on the 
contrary, it is a Christian duty to 
forgive one*s enemies ; and I think 
he does a very humane and charit- 
able and Christiao-like thing in 
abstaining from prosecuting." 

(«) 1 Bing. N. C. 198, 217 (1834). 

(/) 3 Mont. & A. 110 (1837). 



188 REMEDIES FOB TORTS. 

EDgiiflh diction of the court. It is needless to state formally that 
no action can be maintained in respect of an act which is 
justified or excused according to both English and local 
law. Besides this obvious case, the following states of 
things are possible. 

Acts not 1. The act may be such that, although it may be 
byS^liflh wrongful by the local law, it would not be a wrong if 
^^' done in England. In this case no action lies in an 

English court. The court will not carry respect for a 
foreign municipal law so far as to ** give a remedy in the 
shape of damages in respect of an act which, according to 
its own principles, imposes no liability on the person from 
whom the damages are claimed " (u). 

Act8 jua- 2. The act, though in itself it would be a trespass by 
local law. the law of England, may be justified or excused by the 
local law. Here also there is no remedy in an English 
court (x). And it makes no difference whether the act 
was from the first justifiable by the local law, or, not being 
at the time justifiable, was afterwards ratified or excused 
by a declaration of indemnity proceeding from the local 
sovereign power. In the well-known case of Phillips v. 
Ut/re (y), where the defendant was governor of Jamaica at 
the time of the trespasses complained of, an Act of indem- 
nity subsequently passed by the colonial Legislature was 
held effectual to prevent the defendant from being liable 
in an action for assault and false imprisonment brought in 
England. But nothing less than justification by the local 

(w) The HaUey (1868) L. R. 2 Swanst. 603-4, from Loid Kot- 

P. C. 193, 201, 37 L. J. Adm. 33 ; tiiigham's MSS. ; The M. Moxham 

The M, Moxham (1876) 1 P. Div. 1 P. Div. 107. 
107. (y) Ex. Gh. L. R. 6 Q. B. 1, 40 

{x) JBkuTt Casey Blad y. Bayfield L. J. Q. B. 28 (1870}, 
(1673-4) in P. 0. and Oh., 3 



LOCALITY OP WEONGS. 189 

law will do. Conditions of the lex fori suspending or 
delaying the remedy in the local courts will not be a bar 
to the remedy in an English court in an otherwise proper 
case (2). And our courts would possibly make an excep- 
tion to the rule if it appeared that by the local law there 
was no remedy at all for a manifest wrong, such as assault 
and battery committed without any special justification or 
excuse (a). 



wrongful 
by both 
laws. 



3. The act may be wrongful by both the law of Englandi ^^ 
and the law of the place where it was done. In such a 
case an action lies in England, without regard to the 
nationality of the parties (6), provided the cause of action 
is not of a purely local kind, such as trespass to land 
This last qualification was formerly enforced by the technical 
rules of venue, with the distinction thereby made between 
local and transitory actions: but the grounds were sub- 
stcmtial and not technical, and when the Judicature Acts 
abolished the technical forms (c) they did not extend the 
jurisdiction of the Court to cases in which it had never been 
exercised. The result of the contrary doctrine would be 
that the most complicated questions of local law might 
have to be dealt with here as matters of fact, not inci- 
dentally (as must now and then unavoidably happen in 
various cases), but as the very substance of the issues; 
besides which, the Court would have no means of ensuring 
or supervising the execution of its judgments. 

We have stated the law for convenience in a series of Jndgment 
distinct propositions. But, considering the importance of in PhiiUpt 

V. Eyre, 

(t) Scott y. Seymour (1S62) Ex. (b) Per Cur., The Halley, L. B. 

Ch. 1 H. & G. 219, 32 L. J. Ex. 61. 2 P. G. at p. 202. 

(a) J6. per Wigbtman and Wines {c) BHtuh South Africa Co. y. 

J J. Companhia de Mofatnbique, ' 93^ A. G. 

602, 6 R. 1. 



190 BEMEDIES FOB TORTS. 

the Bubjeot, it seems desirable also to reproduce the oon- 
tmuous yiew of it given in the judgment of the Exchequer 
Chamber delivered by Willes J. in Phillips v. Eyre : — 

'' Our courts are said to be more open to admit actions 
founded upon foreign transactions than those of any other 
European ooimtiy; but there are restrictions in respect 
of locality which exclude some foreign causes of action 
altogether, namely, those which would be local if they 
arose in England, such as trespass to land : Douban v. 
Matthetca (d) ; and even with respect to those not falling 
within that description our courts do not undertake uni- 
versal jurisdiction. As a general rule, in order to found a 
suit in England for a wrong alleged to have been com- 
mitted abroad, two conditions must be fulfilled. First, the 
wrong must be of such a character that it would have been 
actionable if committed in England: therefore, in The 
Halley {e) the Judicial Committee pronounced against a suit 
in the Admiralty founded upon a liability by the law of 
Belgium for collision caused by the act of a pilot whom the 
shipowner was compelled by that law to employ, and for 
whom, therefore, as not being his agent, he was not respon- 
sible by English law. Secondly, the act must not have 
been justifiable by the law of the place where it was done. 
Therefore in Blades Case (/), and Bind v. Bamfield (g), Lord 
Nottingham held that a seizure in Iceland, authorized by 
the Danish Government and valid by the law of the place, 
could not be questioned by civil action in England, although 
the plaintiff, an Englishman, insisted that the seizure was in 
violation of a treaty between this country and Denmark — 

{d) 4 T. R. 603, 2 R. R. 448 {*) L. R. 2 P. 0. 193, 37 L. J. 

(1792: no action here for trespass Adm. 33 (1868). 

to land in Canada) : approyed in (/) 3 Swanst. 603. 

SriiUh South Africa Co. y. Com' {ff) 3 Swanst. 604. 
panhia de Mozambique, last page. 



LIMITATION OP ACTIONS. 191 

a matter proper for lemonstranoe, not litigation. And in 
Dobree v. Napier (A), Admiral Napier having, when in the 
servioe of the Queen of Portugal, captured in Portuguese 
water an English ship breaking blockade, was held by the 
Court of Common Pleas to be justified by the law of 
Portugal and of nations, though his serving under a 
foreign prinoe was contrary to English law, and subjected 
him to penalties under the Foreign Eulistment Act. And 
in Reg, v. Lesley (t), an imprisonment in Chili on board a 
British ship, lawful there, was held by Erie C. J., and the 
Court for Crown Cases Beserved, to be no ground for an 
indictment here, there being no independent law of this 
country making the act wrongful or criminal. As to 
foreign laws affecting the liability of parties in respect of 
bygone transactions, the law is dear that, if the foreign 
law touches only the remedy or procedure for enforcing 
the obligation, as in the case of an ordinary statute of 
limitations, such law is no bar to an action in this country; 
but if the foreign law extinguishes the right it is a bar in 
this country equally as if the extinguishment had been by 
a release of the party, or an act of our own Legislature. 
This distinction is well illustrated on the one hand by 
Ruber v. Steiner (A-), where the French law of five years* 
prescription was held by the Court of Common Pleas to be 
no answer in this country to an action upon a French 
promissory note, because that law dealt only with pro- 
cedure, and the time and mcmner of suit {tempus et modum 
actionis imtituendae)^ and did not affect to destroy the obli- 
gation of the contract {valorem contractus) ; and on the 
other hand by Potter v. Brown (/), where the drawer of a 
bill at Baltimore upon England was held discharged from 

(A) 2 Bing. N. 0. 781 (1836). (k) 2 Bing. N. 0. 202. 

(>) BeU C. G. 220, 29 L. J. M. 0. (/) 6 East 124, 1 Smith, 361, 

97 (1860). 7 B. B. 663. 



192 BEMEDIES FOR TORTS. 

his liabilitj for the non-acoeptanoe of the bill here by a 
certificate in bankraptcy, under the law of the United 
States of America, the Court of Queen's Bench adopting 
the general rule laid down by Lord Mansfield in BaUantine 
y. Oolding (m), and ever since recognized, that, 'what is a 

(discharge of a debt in the country where it is contracted is 
a discharge of it everywhere.' So that where an obliga- 
tion by contract to pay a debt or damages is discharged 
and avoided by the law of the place where it was made, the 
accessory right of action in every court open to the creditor 
unquestionably falls to the groimd. And by strict parity 
of reasoning, where an obligation ex delicto to pay damages 
is discharged and avoided by the law of the country where 
it was made, the accessory right of action is in like manner 
discharged and avoided. Cases may possibly arise in which 
distinct and independent rights or liabilities or defences 
are created by positive and specific laws of this country in 
respect of foreign transactions ; but there is no such law 
(unless it be the Governors Act already discussed and dis- 
posed of) applicable to the present case." 

Iiimita- The times in which actions of tort must be brought are 

actioDB. fi^ed by the Statute of Limitation of James I. (21 Jac. 1, 
c. 16) as modified by later enactments {n). No general 
principle is laid down, but actionable wrongs are in effect 
divided into three classes, with a different term of limita- 
tion for each. These terms, and the causes of action to 
which they apply, are as follows, the result being stated, 
without regard to the actual words of the statute, according 
to the modem construction and practice : — 

Six years. 
Trespass to land and goods, conversion, and all other 

(m) Cooke*0 Bankrupt Law, 487. (n) See the text of the statatea, 

Appendix C. 



LIMITATION OF ACTIOKS. 



193 



oommon law wrongs (indliidiiig libel) except slander by 
words actionable per se (o) and injuries to the person. 

Four years. 
Injuries to the person (including imprisonment). 

Ttco years. 
Slander by words actionable jD^r se. 

Persons who at the time of their acquiring a cause of Snspen- 
aotion are infants, or lunatics (je>), have the period of statute by 
Umitation reckoned against them only from the time of ^»^- 
the disability ceasing ; and if a defendant is beyond seas 
at the time of the right of action arising, the time runs 
against the plaintiff only from his return. No part of 
the United Kingdom or of the Channel Islands is deemed 
to be beyond seas for this purpose {p). Married women 
are no longer within this provision since the Married 
Women's Property Act of 1882 {q). If one cause of dis- 
ability supervenes on another unexpired one (as formerly 
where a woman married under age), the period of limita- 
tion probably runs only from the expiration of the latter 
disability (r). 

Wbere damage is the gist of the action, the time rans From 
only from the actual happening of the damage (a). ^^tfon 



nmB. 



(o) See Blake Odgers, Digest of 
Law of Libel, 2nd ed. 520. 

(jf) FlaintiAi impiieoned or being 
beytmd the aeas had the same right 
by the statute of James I., bat 
this was abrogated hj 19 & 20 Vict. 
0. 97 (the Mercantile Law Amend- 
ment Act, 1856), 8. 10. The exist- 
ing law as to defendants beyond 
seas is the result of 4 & 5 Anne, 
0. 3 [al. 16], B. 19, as explained by 
19 & 20 Vict. 0. 97, s. 12. As to 

P. 



the retrospective effect of s. 10, see 
Fardo y. Bingham (1869) 4 Ch. 735, 
39 L. J. Oh. 170. 

(q) See p. 52, above. 

(r) Op. Barrows v. JElliion (1871) 
L. R. 6 Ex. 128, 40 L. J. Ex. 131 
(on the Beal Property Limitation 
Act, 3 & 4 Wm. rV. o. 27) ; but 
the language of the two statutes 
might be disting^nished. 

(<) Baekhom^ y. Bonomi (1861) 9 
H. L. 0. 503, 34 L. J. Q. B. 181 ; 

O 



194 BEMEDIES FOB TOBTS. 

In trover the statute runs from demand on and zef uaal 
by the defendant, whether the defendant were the first 
converter of the plaintiff's goods or not (ti). 

Protectum Justices of the peace {x) and constables (y) are protected 
offioers/ ^7 general enactments that actions against them for anj 
thing done in the execution of their office must be brought 
within jix moatj^ of the act complained of ; and a similar 
rule has now been msuie as to all acts done in execution or 
intended execution of statutory and other public duties or 
authorities (s). 

The enforcement of statutory duties is often made 
subject by the same Acts which create the duties to a 
short period of limitation. For the most part these 
provisions do not really belong to our subject, but to 
various particular branches of public law. The existence of 
such provisions in Lord Campbell's Act and the Employers' 
liability Act has already been noticed. 

Exception The operation of the Statute of Limitation is further 

lo^' subject to the exception of concealed fraud, derived from 

fraud. tijQ doctrine and practice of the Court of Chancery, which, 

whether it thought itself bound by the terms of the statute, 

or only acted in analogy to it (a), considerably modified its 

literal application. Where a wrong-doer fraudulently oon- 

I ceals his own wrong, the period of limitation runs only 

4rom the time when the plaintiff discovers the truth, or 

J)arUy Main CoUiery Co, v. MiteheU (u) Miller v. Dell, '91, 1 Q. B. 

(1886) 11 App. Ca. 127, 66 L. J. 468, 60 L. J. Q. B. 404, 0. A. 

Q. B. 629, aflanning S,C. 14 Q. B. (x) 11 & 12 Vict. o. 44, 8. 8. 

Div. 126. The same principle ap- (y) 24 Geo, II. o. 44, b. 8. 

plies, of course, to special periods {z) Pablio Authorities Protection 

of limitation of actions against Act, 1893, 66 & 67 Vict. o. 61. 

public bodies or officers: see Cr«m^«d {a) See 9 Q. B. Diy. 68, per 

v. WaUsend Local Board, '91 , 1 Q . B. Brett L. J. 
603, 60 L. J. Q. B. 392. 



195 



LIMITATION OF ACTIONS. 

I with reasonable diligence would disoover it. Suoh is now 
the rule of the Supreme Court in eveiy branch of it and in 
all causes (i). 

A plaintiff may not set up by way of amendment claims 
in respect of causes of action which are barred by the 
statute at the date of amendment, though they were not so 
at the date of the original writ {c). 

It has often been remarked that, as matter of policy, 
the periods of limitation fixed by the statute of James are 
tmreasonably long for modem usage ; but modem legisla- 
tion has done nothing beyond removing some of the 
privileged disabilities, and attaching special short periods 
of limitation to some special statutory rights. The 
Statutes of Limitation ought to be systematicaUy revised 
as a whole. 



We have now reviewed the general principles which are Gonolii- 
^ common to the whole law of Torts as to liability, as to General 

I exceptions from liability, and as to remedies. In the f ol- ^*^' 

lowing part of this work we have to do with the several 
distinct kinds of actionable wrongs, and the law peculiarly 
applicable to each of them. 

{b) Gibbs y. Guild (1882) 9 Q. B. Jndicatnre Acts the Court of Chan- 

Diy. 59, 61 L. J. Q. B. 313, which eery would or would not have had 

makes the equitable doctrine of juriBdiction in the case, 
general application without regard (r) TTeldon y, Ifeal (1887) 19 Q. B. 

to the question whether before the Diy. 394, 56 L. J. Q. B. 621. 



o2 



196 



Book II. 

8PB0ZFZ0 WB0KO8. 



CHAPTER VI. 

PERSONAL WRONGS. 



I, — Assault and Battery* 

Prelimi- SscuRiTT for the person is among the first oonditions of 
*'*^' dvilized life. The law therefore protects us, not only 
against aotoal hurt and violenoe, but against every kind of 
bodily interference and restraint not justified or excused 
by allowed cause, and against the present apprehension of 
any of these things. The application of unlawful force to 
another constitutes Che wrong called battery : an action 
which puts another in instant fear of unlawful force, though 
no force be actually applied, is the wrong called assault. 
These wrongs are likewise indictable offences, and under 
modem statutes can be dealt with by magistrates in the 
way of summary jurisdiction, which is the kind of redress 
most in use. Most of the learning of assault and battery, 
considered as civil injuries, turns on the determination of 
the occasions and purposes by which the use of force is 
justified. The elementary notions are so well settled as to 
require little illustration. 

^** " '^^^ ^^^ touching of another in anger is a battery " (a) ; 

(a) Holt C. J., Cole y. Turner (1705) 6 Mod. 149, and Bigdow L. G. 218. 



ASSAULT. 



197 



^* for the law cannot draw the line between different defirees «^d a 

battery. 

of yiolenoe, and therefore totally prohibits the first and 
lowest stage of it ; eyeiy man's person being sacred, and 
no other having a right to meddle with it in any the 
slightest manner " {b). It is immaterial not only whether 
the force applied be Bn£Soient in degree to cause actual 
hurt, but whether it be of such a kind as is likely to cause 
it. Some interferences with the person which cause no 
bodily harm are beyond comparison more insulting and 
annoying than others which do cause it. Spitting in a 
man's face is more offensiye than a blow, and is as much a 
battery in law (c). Again, it does not matter whether the 
force used is applied directly or indirectly, to the human 
body itself or to anything in contact with it ; nor whether 
with the hand or anything held in it, or with a missile {d). 

Battery includes assault, and though assault strictly Wbat an 
means an inchoate battery, the word is in modem usage ^"^ ' 
constantly made to include battery. No reason appears 
for maintaining the distinction of terms in our modem 
practice : and in the draft Criminal Code of 1879 " assault" 
is deliberately used in the larger popular sense. ''An 
assault " (so runs the proposed definition) " is the act of 
intentionally applying force to the person of another 
directly or indirectly, or attempting or threatening by 
any act or gesture to apply such force to the person of 
another, if the person making the threat causes the other 



{b) Blaokst. Gomm. iii. 120. 

(e) £. T. Cotuioarth, 6 Mod. 172. 

{J) FurteU t. Some (1838) 3 N. 
A P. 564 (thiowing water at a per- 
son is assault ; if the water falls on 
him as intended, it is battery also). 
But there is much older authority, 
see Beg. Brey. 108 b, a writ for 



throwing * * qnendam liqnoiem call* 
dom" on the plaintiff: "casns 
erat hninsmodi praecedentis brevis : 
qnaedam mailer proiedt super 
aliam mulierem jdromellum quod 
anglice dicitur worte quod erat 
nimis calidum." 



198 



PERSONAL WBONGB. 



I 



to believe {e) upon reasonable grounds that he has present 
ability tp eflEect his purpose " (/), 

Examples of acts which amount to assaulting a man are 
the following : ** Striking at him with or without a weapon, 
or presenting a gun at him at a distance to which the gun 
will carry, or pointing a pitchfork at him, standing within 
the reach of it, or holding up one's fist at him, or drawing 
a sword and waving it in a menacing mannec " {g). The 
essence of the wrong is putting a man in present fear of 
violence, so that any act fitted to have that effect on a 
reasonable man may be an assault, though there is no real 
present ability to do the harm threatened. Thus it may 
be an assault to present an unloaded fire-arm (A), or even, 
it is apprehended, anything that looks like a fire-arm. So 
if a man is advancing upon another with apparent intent 
to strike him, and iB Btopped by a third person before he is 
actually within striking distance, he has committed an 
assault (»). Acts capable in themselves of being an assault 



{e) One might expect "believeB 
or causee/' &o. ; but this would 
be an extensioii of the law. No 
aaeanlt is oommitted b7 preeentmg 
a gun at a man who cannot see it, 
an7 more than by fonning an in- 
tention to shoot at him. 

(/) Criminal Code (Indictable 
Offences) Bill, b. 203. Mr. Justice 
Stephen's definition in his Digest 
(art. 241) is more elaborate; and 
the Indian Penal Code has an ex- 
tremely minute definition of "using 
force to another*' (s. 849). As 
Mr. Justice Stephen remarks, if 
legislators begin defining in thia 
way it is hard to see what they 
can assume to be known* 

(^) Bacon Abr. "Assault and 
Battery," A; Hawkins P. C. L 
110. 



(A) S, T. Jamet (1844) 1 0. & K. 
630, is apparently to the oontrazy. 
Tindal C. J. held that a man could 
not be oonTioted of an attempt to 
discharge a loaded fire-ann under 
a criminal statute, nor even of an 
assault, if the arm is (as by defeo- 
tive priming) not in a state capable 
of being discharged ; but this 
opinion (also held by Lord Abinger, 
£lake T. Barnard, 9 0. & P. at p. 
628) is against that of Parke B. in 
S. V. St. George (1840) 9 C. & P. 
483, 493, which on this point would 
almost certainly be f oUowed at this 
day. The case is oyeiTuled on 
another point, purely on the words 
of the statute^, and not here mate- 
rial, in J^. T. Duekioorth, '92, 2 Q. 
B. 83, 66 L. T. 302. 

(i) Stephem y. Myers, 4 C. & P. 



AfiSAULT. 



199 



maj on the other hand be explained or qualified by words 
or ciroumstanoes contradicting what might otherwise be 
inferred from them. A man put his hand on hiis sword 
and said, ''If it were not assize-time^ I would not take 
such language from you;" this was no assault^ because 
the words excluded an intention of actually striking (k). 

Hostile or unlawful intention is necessary to constitute Excusable 
an indictable assault ; and such touching, pushing, or the 
like as belongs to the ordinary conduct of life, and is free 
from the use of unnecessary force, is neither an offence nor 
wrong. ** If two or more meet in a narrow passage, and 
without any violence or design of harm the one touches the 
other gently, it wiU be no battery " (/). The same rule 
holds of a crowd of people going into a theatre or the 
like(m). Such accidents are treated as inevitable, and 
create no right of action even for nominal damages. In 
other cases an intentional touching is justified by the 
common usage of civil intercourse, as when a man gently 
lays his hand on another to attract attention. But the use 
of needless force for this purpose, though it does not seem 
to entail criminal liability where no actual hurt is done, 
probably makes the act civilly wrongful (w). 

Mere passive obstruction is not an assault, as where a 
man by standing in a doorway prevents another from 
coming in (o). 



849 ; Bigelow L. 0. 217. A lazge 
proportioii of the authorities on 
this Bubjeot.are Nisi Prius cases 
(op. however £ead t. Coker (1853) 
13 C. B. 860, 22 L. J. G. P. 201) : 
see the sub-titles of Assault under 
Ciimiiial Law and Trespass in 
Fisher's Digest. Some of the 
dicta, as might.be expected, are in 
conflict. 



{k) Tuberville t. Savags (1669) 1 
Mod. 3. 

(0 Holt G. J., Cold Y. Tktmert 6 
Mod. 149. 

(m) Steph. Big. Gr. Law, art. 241, 
illustrations. 

(n) Coward v. BaddeUy (1869) 4 
H. k N. 478, 28 L. J. Ex. 260. 

(o) Jnne9 ▼. Wylie (1843) 1 G. & 
K. 257. But it seems the other, if 



200 



PERSONAL WB0NQ8. 



Words oannot of themBelyes amount to an assault under 
any droumstanoes, though there is evidenoe of an earlier 
oontrary opinion : 

** For Meade*B case proves, or 1117 Beport's in fault, 
That singing can't be reokoned an assault " (p). 

There is little direct authority on the point, but no doubt 
is possible as to the modem law. 



Consent, or in the oommon phrase '' leave and lioenoe," 
will justify many acts which would otherwise be assaults (q) , 
striking in sport for example; or even, if coupled with 
reasonable cause, wounding and other acts of a dangerous 
kind, as in the practice of surgery. But consent will not 
make acts lawful which are a breach of the peace, or other- 
wise criminal in themselyes, or unwarrantably dangerous. 
To the authorities abeady cited (r) under the head of 
General Exceptions we may add Hawkins' paragraph on 
the matter. 

'^ It seems to be the better opinion that a man is in no 
danger of such a forfeiture [of recognizances for keeping 
the peace] from any hurt done to another by playing at 
cudgels, or such like sport, by consent, because the intent 
of the parties seems no way unlawful, but rather com- 



he is going where he has a right to 
go, is justified in pushing him 
aside, though not in striking or 
other violence outside the actual 
exercise of his right: see p. 160, 
above. 

(p) The Cirouiteers, by John 
Leyoeeter Adolphus (the supposed 
speaker is Sir Gregory Lewin), 
L. Q. R. L 232 ; Msade'i and BeWs 
ca,f 1 Lewin G. 0. 184 : ^'no worth 
or singing are equivalent to an 
assault," per Holroyd J. Gp. 
Hawkins P. G. i. 110. That it 



was formerly held otherwise, see 
27 Ass. 134, pi. 11, 17 Ed. IV. 3, 
pi. 2, 36 Hen. VI. 20 d, pi. 8. 

{q) Under the old system of 
pleading this was not a matter of 
special justifioatioD, but evidence 
under the geueral issue^ an assault 
by consent being a oontradiction in 
terms : Chrittophm'ton v. Bar$ (1848) 
11 Q. B. 473, 17 L. J. Q. B. 109. 
But this has long ceased to be of 
any importance in England. 

(r) P. 147, libove. 



SELF-DEFENCE. 



201 



• 



mendable, and tending mutaallj to promote aotiyitj and 
courage. Yet it is said that he who wounds another in 
fighting with naked swords does in strictness forfeit such a 
recognizance, because no consent can make so dangerous a 
diversion lawful " («) . 

It has been repeatedly held in criminal cases of assault 
that an unintelligent assent, or a consent obtained by fraud, 
is of no effect (t). The same principles would no doubt be 
applied by courts of civil jurisdiction if necessary. 

When one is wrongfully assaulted it is lawful to repel Self- 
force by force (as also to use force in the defence of those ^ 
whom one is bound to protect, or for keeping the peace), 
provided that no unne^ssary violence be used. How much 
force, and of what kind, it is reasonable and proper to use 
in the circumstances must always be a question of fact, 
and as it is incapable of being concluded beforehand by 
authority, so we do not find any decisions which attempt a 
definition. We must be content to say that the resistance 
must ^* not exceed the bounds of mere defence and preven- 
tion " {u)y or that the force used in defence must be not 
more than ^' commensurate " with that which provoked 
it (v). It is obvious, however, that the matter is of much 
graver importance in criminal than in civil law {to). 



(<) Hawkins, P. 0. i. 484. The 
Boman law went even faziher in 
encouraging oontesta " gloriae 
oausa et yirtutis," D. 9. 2, ad. 1. 
Aqoil. 7, § 4. 

(t) Gases collected in Fisher's 
Big. ed. Mews, 2081-2. Similarly 
where consent is given to an nn« 
reasonably dangerous operation or 
ia^eatment by one who relies on the 
prisoner's skill, it does not excuse 
him from the gwlt of manslaughter 
if death ensues: OommontceaUh y. 



Fieroe, 138 Mass. 165, 180. 

(m) Blackst. Comm. ill. 4. 

(v) Beeee ▼. Taylor, 4 N. & M. 
470. 

{id) See Stephen's Digest of the 
Criminal Law, art. 200, and op. 
Criminal Code Bill, bs. 65-^67 ; 
and for fall discussion Dicey, Law 
of the Constitution, 4th ed. appx. 
note iv. There are many modem 
American decisions, chiefly in the 
Southern and Western States. See 
Cooley on Torts, 165. 



202 



PERSONAL WBONGS. 



Kenaoe Menace without aasault is in some oases actionable. But 

^nished this is on the ground of its causing a certain special kind 
^1^^^ of damage ; and then the person menaced need not be the 
person who suffers damage. In fact the old authorities 
are all, or nearly all, on intimidation of a man's servants 
or tenants whereby he loses their service or dues. There- 
fore, though under the old forms of action this wrong was 
of the same genus with assault and battery, we shall find 
it more convenient to consider it under another head. 
Verbal threats of personal violence are not, as such, a 
ground of civil action at all. If a man is thereby put in 
reasonable bodily fear he has his remedy, but not a civil 
one, namely by security of the peace. 

S^™™^ Where an assault is complained of before justices under 

mgs when 24 & 25 Yict. c. 100, and the complaint has been dismissed 

oivii (after an actual heariug on the merits) (2?), either for want 

action. ^£ proQf^ Qj Qn ti^0 ground that the assault or battery was 

'^ justified or so trifling as not to merit any punishment," 
or the defendant has been convicted and paid the fine or 
suffered the sentence, as the case may be, no further pro- 
ceedings either dvil or criminal can be taken in respect of 
the same assault (y). 



FaUe 

impriflon- 

ment. 



II. — Fabe Imprisonment. 

Freedom of the person includes immunity not only from 
the actual application of force, but from every kind of 
detention and restraint not authorized by law. The in- 



{x) jR$ed y. Kutt (1890) 24 Q. B. 
D. 669, 69L. J. Q. B. 311. 

(y) 24 & 26 Viot. 0. 100, 88. 42— 
45. Mtuper v. Brown (1876) 1 0. 
P. D. 97, decides that the Act Ib 
not cx>nfined to Buits strictl j for the 
aame caiue of action, but oxtenda 



to bar actions by a husband or 
nuister for oonseqaential damage : 
the words of the Act are '* same 
cause," but thej are equivalent to 
*< same assault " in the earlier Act, 
16 & 17 Vict. 0. 30, s. 1, repealed 
bj 24 ft 26 Vict. 0. 95. 



FALSE IBiPRISONMENT. 203 

fliction of suoh restraint is tlie wrong of false imprison- 
ment ; which, though generally coupled with assault, is 
neyertheless a distinct wrong. Laying on of hands or 
other actual constraint of the body is not a necessary 
element ; and, if *^ stone walls do not a prison make " for 
the hero or the poet, the law none the less takes notice that 
there may be an effectual imprisonment without walls of 
any kind. '^ Every confinement of the person is an im- 
prisonment, whether it bo in a common prison, or in a 
private house, or in the stocks, or even by forcibly detain- 
ing one in the public streets" (s). And when a man is 
lawfully in a house, it is imprisonment to prevent hin^ 
from leaving the room in which he is (a). The detainer, 
however, must be such as to limit the party's freedom of 
motion in all directions. It is not an imprisonment to 
obstruct a man's passage in one direction only. '' A prison 
may have its boundary large or narrow, invisible or tangible, 
actual or real, or indeed in conception only ; it may in 
itself be moveable or fixed ; but a boundary it must have, 
and from that boundary the party imprisoned must be pre- 
vented from escaping ; he must be prevented from leaving 
that place within the limit of which the party imprisoned 
could be confined." Otherwise every obstruction of the 
exercise of a right of way may be treated as an imprison- 
ment {b). A man is not imprisoned who Jiaaj|£t«escape 
AT>A ^ fn him (A ; that is, we apprehend, a means of escape 
which a man of ordinary ability can use without peril of 



(z) BUolcBt. Gomm. iii. 127. (3) Bird y. Jones (1845) 7 Q. B. 

(a) JTarmr t. Siddiford, 4 0. B. 742, 15 L. J. Q. B. 82, per Cole- 

N. S. 180 ; even if he u disabled zidge J. 

by fiickness from moTing at all: {e) WilliameJ.yt^. To the same 

the assumption of control is the effeot Patteeon J. : '* Imprison- 

main thing : Oraing&r t. RiU (1838) ment is a total restraint of liberty 

4 Bing. N. G. 212. of person." Lord Dennian 0. J. 

dissented. 



204 PEE80NAL WRONGS. 

life or limb. The verge of a cliff, or the foot of an 
apparently impracticable wall of rock, would in law be a 
sufficient boundary, though peradventure not sufficient in 
fact to restrain an expert diver or mountaineer. Bo much 
as to what amounts to an imprisonment. 

JiiBtiflca. When an action for false imprisonment is brought and 
amet and defended, the real question in dispute is mostly, though 
mpnaon- j^^^ always, whether the imprisonment was justified. One 
could not account for all possible justifications except by a 
full enumeration of aU the causes for which one man may 
lawfully put constraint on the person of another : an un- 
dertaking not within our purpose in this work. We have 
considered, under the head of General Exceptioxis {d)^ the 
principles on which persons acting in the exercise of special 
duties and authorities are entitled to absolute or qualified 
immunity. With regard to the lawfulness of arrest and 
imprisonment in particular, there are divers and somewhat 
minute distinctions between the powers of a peace-officer 
and those of a private citizen {e) : of which the chief is that 
\ an officer may without a warrant arrest on reasonable 
suspicion of felony, even though a felony has not in fact 
been committed, whereas a private person so airesting, or 
causing to be arrested, an alleged offender, must show not 
only that he had reasonable grounds of suspicion but that 
I a felony had actually been committed (/). The modem 
policeman is a statutoiy constable having all the powers 
which a constable has by the common law (^), and special 

(d) Gh. IV. p. 97, above. not ezooBe constables for arresting 
{e) Stephen, Dig. Grim. Pftw. persons on the reasonable belief 
0. 12, 1 Hist. Gr. Law 193: and that they hayc committed a mis- 
see Moffff Y. Ward (1858) 3 H. & N. demeanour : " see Gr\fin v. Coleman 
417, 27 L. J. Ex. 443. (1859) 4 H. 4b K. 265, 28 L. J. Ex. 

(/) This appUes only to felony: 134. 
<*the law [i.tf., common law] does (^) Stephen, 1 Hist. Gr. Law, 



FAU9E IMPRISONMENT. 



205 



statutorj powers for dealing with yarious particular 
offenoes (A). 

Every one is answerable for speoificallj direoting the Who is 
arrest or imprisonment of another, as for any other act that able, 
he specifioall J commands or ratifies ; and a superior officer 
who finds a person taken into custody by a constable under 
his orders, and then continues the custody, is liable to an 
action if the original arrest was unlawful (»). Nor does it 
matter whether he acts in his own interest or another's (y). 
But one is not answerable for acts dome upon his informa- 
tion or suggestion by an officer of the law, if they are done 
not as merely ministerial acts, b^ in the exercise of the 
officer's proper authority or discretion. !Bather trouble- 
some doubts may arise in particular cases as to the quality 
of the act complained of, whether in this sense discre- 
tionary, or ministerial only. The distinction between a 
servant and an ** independent contractor " (k) with regard 
to the employer's responsibility is in some measure 
analogous. A party who sets the law in motion without 
making its act his own is not necessarily free from liability. 
He may be liable for malicious prosecution (of which here- 
after) (/) ; but he cannot be sued for false imprisonment, or 
in a court which has not jurisdiction over cases of maUcious 
prosecution. ''The distinction between false imprison- 
ment and malicious prosecution is well illustrated by 



197, 199. Ab to the oommon law 
powers of oonstables and others to 
arrest for preeervatioxi of the peaoe, 
which seem not free from doubt, 
see Timothy y. Simpson (1835) 1 G. 
M. & R. 767, Bigelow L. G. 267, 
per Parke B. 

{h) Stephen, 1 Hist. Gr. Law, 
200. 



(i) Gr\fin y. Coleman, note (/) 
last page. 

U) Barker y. Braham (1773) 2 
W. BL 866 (attorney suing out and 
procuring execution of yoid pro- 
cess). 

{k) Pp. 72, 73, aboye. 

(/) ^^F\tzjohnY,Mack%nder{;i%%\) 
Ex. Gh. 1861, 9 G. B. N. S. 606, 
30 L. J. G. P. 267. 



206 



FEBSOKAL WBONOS. 



the case where, parties being before a magistrate, one 
makes a oharge against another, whereupon the magistrate 
orders the person ohaxged to be taken into custody and 
detained until the matter can be investigated. The party 
making the charge is not liable to an action for false 
imprisonment, because he does not set a ministerial officer 
in motion, but a judicial officer. The opinion and the 
judgment of a judicial officer are interposed between the 
oharge and the imprisonment " (m). Where an officer has 
taken a supposed offender into custody of his own motion, 
a person who at his request signs the charge-sheet does not 
thereby make the act his own (n), any more than one who 
certifies work done under a contract thereby makes the 
contractor his servant. But where an officer consents to 
take a person into custody only upon a charge being 
distinctly made by the complainant, and the charge- 
sheet signed by him, there the person signing the 
charge-sheet must answer for the imprisonment as well 
as the officer (o). 

Again, where a man is given into custody on a mis- 
taken charge, and then brought before a magistrate who 
remands him, damages can be given against the prosecutor 
in an action for false imprisonment only for the trespass 



(m) Willes J., Austin t. Ihnclmg 
(1870) L. B. 6 C. P. at p. 540 ; 
West V. 8maUumd (1838) 3 M. & 
W. 418 ; Bigelow L. C. 237 ; nor 
does an action for malidons proee- 
oation lie where the jndioial officer 
has held on a true statement of the 
facts that there is reasonable cause : 
Sqp$ y. M^^ed (1886) 17 Q. B. D. 
338, 66 L. J. M. G. 146 ; Lea v. 
CharringUm (1889) 23 Q. B. Div. 
46, 272, 68 L. J. Q. B. 461. 

(n) Qrinham y. JTiUe^ (1850) 4 
H. & N. 496, 28 L. J. Ex. 242. 



(o) Austin Y. D<noUn0 (1870) L. 
R. 6 0. P. 684, 39 L, J. C. P. 
260. As to the protection of 
parties issuing an execution in 
regular course, though the judg- 
ment is afterwards set aside on 
other grounds, see Smith y. Sydney 
(1870) L. B. 5 Q. B. 203, 39 L. J. 
Q. B. 144. One case often dted, 
Fl&wster y. Royle (1808, Lord Ellen- 
borongh) 1 Gamp. 187, is of doubt* 
ful authority : see Chsdm y. JSlphiek 
(1849) 4 Ex. 446, 19 L. J. Ex. 9 ; 
and Orinham y. WiUey^ last note. 



REASONABLE CAUSE FOB ARREST. 



207 



in arrestiQg, not for the remand^ whioh is the aot of the 
magistrate (p). 

What is reasonable cause of suspicion to justify arrest Reason- 
may be said, paradoxical as the statement looks, to be neither probaUe 
a question of law nor of fact, at any rate in the oommon **^**®' 
sense of the terms. Not of fact, because it is for the judge 
and not for the jury (g) ; not of law, because " no definite 
rule can be laid down for the exercise of the judge's judg- 
ment" (r). It is a matter of judicial discretion such as 
is familiar enough in the classes of cases which are dis- 
posed of by a judge sitting alone ; but this sort of discre- 
tion does not find a natural place in a system which 
assigns the decision of facts to the jury and the determina- 
tion of the law to the judge. The anomalous character of 
the rule has been more than once pointed out and regretted 
by the highest judicial authority (a). The truth seems to 
be that the question was formerly held to be one of law, 
and has for some time been tending to become one of fact, 
but the change has neyer been formally recognized. The • 
only thing which can be certainly affirmed in general ' 
terms about the meaning of ^' reasonable cause " in this 
connexion is that on the one hand a belief honestly enter- 
tained is not of itself enough (t) ; on the other hand, a man 
is not bound to wait until he is in possession of such evi- 



(p) Lock T. MhUm (1848) 12 
Q. B. 871, 18 L. J. Q- B. 76. 

(q) SaiUa y. Marhi (1861) 7 H. 
ft N. 56, 80 L. J. Ex. 389. 

(r) lAMter v. iVrrym<m (1870^ L. 
B. 4 H. L. 621, 535, per Lord 
Chelmsford. So per Lord Colonsa j 
at p. 540. 

(«) Lord Campbell in Broughion 
T. Jaekton (1852) 18 Q. B. 378, 
883, 21 L. J. Q. B. 266; Lord 
Hatlierlej, Lord Weetbory, and 



Lord Colousaj (all familiar with 
procedure in which there was no 
jury at all) in Lut^r y. Perrymany 
L. R. 4 H. L. 531, 538, 539. 

(t) Broughton y. Jackson (1852) 
18 Q. B. 378, 21 L. J. Q. B. 266 : 
the defendant must show ''facts 
which would create a reasonable 
suspicion in the mind of a reason- 
able man," per Lord Campbell 
O.J. 



208 PERSONAL WBONQB. 

f denoe as would be admiBsible and soffioient for proeeouting 
< the ofifenoe to conviotion, or even of the beet evidence 
I which he might obtain by further inquiry. '^ It does not 
follow that because it would be very reasonable to make 
further inquiry, it is not reasonable to act without doing 
so"(t«). It is obvious, also, that the existence or non- 
existence of reasonable cause must be judged, not by the 
event, but by the party's means of knowledge at the time. 
Although the judge ought not to leave the whole ques- 
tion of reasonable cause to the jury, there seems to be no 
objection to his asking the jury, as separate questions, 
whether the defendant acted on an honest belief, and 
whether he used reasonable care to inform himself of the 
facts (^). 

m. — Injuries in Family Relations. 

Protection Next to the sanctity of the person comes that of the 
rola^ns. personal relations constituting the family. Depriving a 
husband of the society of his wife, a parent of the com- 
panionship and confidence of his children, is not less a 
personal injury, though a less tangible one, than beating 
or imprisonment. The same may to some extent be said 
of the relation of master and servant, which in modem 
law is created by contract, but is still regarded for some 
purposes as belonging to the permanent organism of the 
family, and having the nature of status. It seems natural 
enough that an action should lie at the sidt of the head of 
a household for enticing away a person who is under his 
lawful authority, be it wife, child, or servant ; there may 
be difficulty in fixing the boimdary where the sphere of 

(«) Bramwell B., Ferryman y. H. L. at p. 633. 

LiaUr (1868) L. R. 8 Ex. at p. 202, {x) H. Stephen on MaUoions 

approved b7 Lord Hatherley, 8. (7. Proseoationy oh. 7. 
nom. Lister v. Ferryman ^ L. B. 4 



LOSS OP SERVICE. 309 

domestio relations ends and that of pure oontraot begins, 
but that is a difficulty of degree. That the same rule 
should extend to any wrong done to a wife, child, or 
servant, and followed as a proximate oonsequence by loss 
of their society or service, is equally to be expected. 
Then, if seduction in its ordinary sense of physical and 
moral corruption is part of the wrong-doer's conduct, it is 
quite in accordance with principles admitted in other parts 
of the law that this should be a recognized ground for 
awarding exemplary damages. It is equally plain that on 
general principle a daughter or servant can herself have 
no civil remedy against the seducer, though the parent or 
master may ; no civil remedy, we say, for other remedies 
have existed and exist. She cannot complain of that which 
took place by her own consent. Any different rule would 
be an anomaly. Positive legislation might introduce it on 
grounds of moral expediency ; the courts, which have the 
power and the duty of applying known principles to new 
cases, but cannot abrogate or modify the principles them- 
selves, are unable to take any such step. 

There seems, in short, no reason why this class of Historical 
wrongs should not be treated by the common law in a of the 
fairly simple and rational manner, and with results gene- JJ!J^°^ 
rally not much unlike those we actually find, only free l^«wia« 
from the anomaUes and injustice which flow from dis- 
guising real analogies under transparent but cumbrous 
fictions. But as matter of histoiy (and pretty modem 
history) the development of the lair has been strangely 
halting and one-sided. Starting from the particular case 
of a hired servant, the authorities have dealt with other 
relations, not by openly treating them as analogous in 
principle, but by importing into them the fiction of actual 
service ; with the result that in the class of cases most 

p. p 



210 PERSONAL WRONGS. 

prominent in modem praotioe, namely, actions brought by 
a parent (or person in loco parentis) for the seduction of a 
daughter, the test of the plaintiff's right has come to be, 
not whether he has been injured as the head of a family, 
but whether he can make out a oonstructiye *^ loss of Ber« 
yioe '' (y). 

TrospftM The common law provided a remedy by writ of trespass 
awaywSle, ^^^ ^® actual taking away of a wife, servant, or heir, and 
* r ^Md V^^^^V^ younger child also (») . An action of trespass also 
aervitium lay for WTOUgs donc to the plaintiff's wife or servant (not 
to a child as such), whereby he lost the society of the 
former or the services of the latter. The language of 
pleading was per quod consortium^ or servitium amisit. 
Such a cause of action was quite distinct from that which 
the husband might acquire in right of the wife, or the 
servant in his own right. The trespass is one, but the 
remedies are ''diversis respectibus" (a). *^ If my servant 
is beat, the master shall not have an action for this battery, 
unless the batteiy is so great that by reason thereof he 
loses the service of his servant, but the servant himself for 
every small batteiy shall have an action ; and the reason 
of this difference is that the master has not any damage 
by the personal beating of his servant, but by reason of a 
per quod, viz., per quod servitium^ Sfc, amisit ; so that the 
original act is not the cause of his action, but the conse- 
quent upon it, viz,f the loss of his service, is the cause of 
his action ; for be the batteiy greater or less, if the master 

{jf) Ghxistian's note on Black- Bladut. Gonun. iii. 139. The writ 

stone iii. 142 is BtUI not amiss, was d$ uxor$ dbducta cum bonis viri 

thoagh the amendments of this m, or an ordinary writ of trespass 

century in the law of eridenoe (F. N. B. 62 K] ; a case as late as 

have remoTcd some of the grier- the Restoration is mentioned in 

anoes mentioned. Bac. Abr. t. 328 (ed. 1832). 

(s) F. N. B. 89 0, 90 H, 91 1 ; (a) Y. B. 19 Hen. YI. 45, pi. 94. 



" CRIMINAL CONVERSATION." 



211 



doth not lose the servioe of his servant, he shall not have an 
action " (b). The same role applies to the beating or mal- 
treatment of a man's wife, provided it be " very enormous, 
so that thereby the husband is deprived for any time of 
the company and assistance of his wife " (c). 

Against an adulterer the husband had an action at << Criminal 
common law, commonly known as an action of criminal tion." 
conversation. In form it was generally trespass vi et armk^ 
Qn the theory that '' a wife is not, as regards her husband, 
a free agent or separate person" (cf), and therefore her 
consent was immaterial, and the husband might sue the 
adulterer as he might have sued any mere trespasser who 
beat, imprisoned, or carried away his wife against her will. 
Actions for criminal conversation were abolished in Eng- 
land on the Establishment of the Divorce Court in 1857, 
but damages can be claimed on the same principles in 
proceedings under the jurisdiction then instituted {e). 

In practice these actions were always or almost always 
instituted with a view to obtaining a divorce by private 
Act of Parliament; the rules of the House of Lords (in 
which alone such Bills were brought in) requiring the 
applicant to have obtained both the verdict of a jury in an 
action, and a sentence of separation a mema et toro in the 
Ecclesiastical Court. 



{h) Roheri MarytU case, 9 Co. Rep. 
1 1 3a. It is held in Othom v. Oillett 
(1873) L. R. 8 Ex. 88, 42 L. J. Ex. 
53, that a master shall not have an 
action for a trespass whereb7 his 
servant is killed {dist, Bramwell 
B.). It is submitted that the deci- 
sion is wrong, and Lord BramweU's 
dissenting judgment right. See 
pp. 67-69, aboye. 



{e) Blackst. Comm. ill. 140. 

{d) C!oleridge J. in Lumley y. 
Qye (1863) 22 L. J. Q. B. at p. 478. 
Case would also lie, and the com- 
mon form of declaration was for 
some time considered to be rather 
case than trespass: Maefadzen y. 
Olivant (1806) 6 East 387. See 
note (/) next page. 

{e) 20 & 21 Vict. c. 86, 88. 33, 69. 



p2 



212 



PEB80NAL WBONGS. 



EntioiDg 

awaj 

flerrantfl. 



An action also lay for enticing away a servant (that 10, 
procuring him or her to depart yoluntarilj from the 
master's serrioe), and also for knowingly harbouring a 
seryant during breach of Qervioe ; whether by the common 
law, or only after and by yirtue of the Statute of 
Labourers (/), is doubtful Quite modem examples are 
not wanting (jg). 

Much later the experiment was tried with success of a 
husband bringing a like action '^ against such as persuade 
and entice the wife to live separate from him without a 
sufficient catise '' (A). 

Still later the action for enticing away a servant per 
quod aervitium amiaitj was turned to the purpose for which 
alone it may now be said to survive, that of punishing 
seducers ; for the latitude allowed in estimating damages 
makes the proceeding in substance almost a penal one. 



(/) 28 Edw. III. (A.D. 1349) : 
thifl statute, paused in oonsequenoe 
of the Black Death,, marks a great 
oiisis in the history of English 
agrioultore and land tenure. As 
to its bearing on the matter in 
hand, see the dissenting judgment 
of Coleridge J. in Lumley ▼. Oy$ 
(1863) 2 E. & B. 216, 22 L. J. 
Q. B. 463, 480. The action was 
generally on the case, but it might 
be trespass : 0. ^., Tullidge y. Wade 
(1760) 3 Wils. 18, an action for 
seducing the plaintifl*8 daughter, 
where the declaration was in 
trespass vi it artnis. How this 
can be accounted for on principle 
I know not, short of regarding the 
servant as a quati chattel: the 
difficulty was felt by Sir James 
Mansfield, Woodward ▼. Walton 
(1807) 2 B. & P. N. R. 476, 482. 
For a time it seemed the better 
opinion, however, that treepaas was 



the only proper form : ibid,t Diteham 
▼. Bond (1814) 2 M. & 8. 436, see 
14 R. R. 836 M. It was formally 
decided as late as 1839 (without 
giving any other reason than the 
constant practice) that trespass or 
case might be used at the pleader's 
option: Chamberlain v. Hazelwood 
(1839) 6 M. & W. 616, 9 L. J. Ex. 
87. The only conclusion which can 
or need at this day be drawn from 
such fluctuations is that the old 
system of pleading did not succeed 
in its professed object of main- 
taining clear logical distinctions 
between different causes of action. 

{ff) Hartley v. Cummingt (1847) 5 
0. B. 247, 17 L. J. C. P. 84. 

(A) Blackst. Ckmmi. iii. 139; 
Wintnwri v. Oreenhank (1746) 
Willes 677, Bigelow L. G. 328. 
It was objected that there was no 
precedent of any such action. 



SEDUCTION. 



213 



In this kind of action it is not neoessary to prove the AoticnuB 
existence of a binding contract of service between the tionin 
plaintiff and the person seduced or enticed away. The ™^^^. 
presence or absence of seduction in the common sense proof or 
(whether the defendant '^ debauched the plaintiff's daugh- Hon of 
ter/' in the forensic phrase) makes no difference in this ^' 
respect ; it is not a necessary part of the cause of action, 
but only a circumstance of aggravation (i). Whether that 
element be present or absent, proof of a de facto relation of 
service is enough ; and any fraud whereby the servant is 
induced to absent himself or herself affords a ground of 
action, ^' when once the relation of master and servant at 
the time of the acts complained of is established " (k). 

This applies even to an actual contract of hiring made 
by the defendant with a female servant whom he has 
seduced, if it is found as a fact that the hiring was a 
merely colourable one, undertaken with a view to the 
seduction which followed (/). And a de facto service is 
not the less recognized because a third party may have a 
paramount claim : a married woman living apart from her 
husband in her father's house may be her father's servant, 
even though that relation might be determined at the will 
of the husband (m). Some evidence of such a relation there 
must be, but very little will serve. A grown-up daughter 
keeping a separate establishment cannot be deemed her 



(f) Bvatu Y. JFalton (1867) L. B. 
2 C. P. 616, 86 L. J. 0. P. 307, 
where it was unsaooeesfiilly con* 
tended that the action for seducing 
a daughter with Iobs of service as 
the consequence, and for enticing 
Hway a senrant, were distinct 
Bpedes; and that to sustain an 
action for '* enticing away" alone, 
a landing contract of serrioe must 
he proTed. 



[k) WiHes J., L. E. 2 0. P. 622. 

(V) Speiffht y. Oliviera (1819) 2 
Stark. 493, dted with approval hj 
Montague Smith J., L. B. 2 C. P. 
624. 

(m) Marper v. Luffkin (1827) 7 
B. & G. 387. This was long hefore 
courts of law did or could recog- 
nize any capacity of contracting in 
a married woman. 



214 



P£BSONAL WBONGS. 



father's servant (n) ; nor can a daughter, whether of full 
age or not, who at the time of the seduotion is actually 
another person's servanty so that no part of her serrioes is 
at her parents' disposal (o). On the other hand, the fact 
of a child living with a parent, or any other person in loco 
parentis^ as a member of the family of which that person 
is the head, is deemed enough to support the inference 
" that the relation of master and servant, determinable at 
the will of either party, exists between them " (p). And 
a daughter under age, returning home from service with 
another person which has been determined, may be deemed 
to have re-entered the service of her father (q) . *^ The 
right to the service is sufficient " (r). 

Partial attendance in the parents' house, is enough to 
constitute service, as where a daughter employed elsewhere 
in the daytime is without consulting her employer free to 
assist, and does assist, in the household when she comes 
home in the evening («). 

Damages. 8ome loss of service, or possibility of service, must be 
shown as consequent on the seduction, since that is, in 
theory, the ground of action (t) ; but when that condition 



(n) Manlep y. Field (1859) 7 0. B. 
N. 8. 96, 29 L. J. 0. P. 79. 

(o) Dean v. Peel (1804) 6 East 
46, 7 B. B. 663 ; even if by the 
master's licence she g^ves occasional 
help in her parents* work ; Thomp' 
ton y. noes (1869) 6 H. & N. 16, 29 
L. J. Ex. 1 ; Hedffee v. Tagg (1872) 
L. B. 7 Ex. 283, 41 L. J. Ex. 169. 
In the United States it is generally 
held that aotoal service with a third 
person is no bar to the action, 
unless there is a binding contract 
which excludes the parents' right 
of reclaiming the child's services — 
i.e. that serrioe either de facte or 



de Jure will do : Martin v. Fayne 
(Sup. Court N. Y. 1812), Bigelow 
L. 0. 286, and notes. 

{p) Bramwell B. in Thompeon v. 
J^OM, last note. 

{q) Terry y. JHutehineon (1868) 
L. B. 3 Q. B. 699, 37 L. J. Q. B. 
267. 

(r) littledale J. cited with ap- 
proval by Blackburn J., L. B. 3 
Q. B. 602. 

(«) £iet y. Faux (1863) Ex. Gh. 
4 B. & S. 409, 32 L. J. Q. B. 386. 

(0 Orinnell v. JTelle (1844) 7 M. 
& a. 1033, 14 L. J. 0. P. 19; 
£ager t. Qrimmod (1847) 1 Ex. 61, 



SEDUCmON. 



215 



is once satifified, the damaires that may be iriyen are by 
no mean. lindL to an Zunt oommenBo^te with the 
actual loss of service proved or inferred. The awarding 
of exemplary damages is indeed rather encouraged than 
otherwise (u). It is immaterial whether the plaintiff be a 
parent or kinsman, or a stranger in blood who has adopted 
the person seduced (x). 

On the same principle or fiction of law a parent can Semoes of 
sue in his own name for any injury done to a child living diildf 
under his care and control, provided the child is old enough 
to be capable of rendering service ; otherwise not, for "the 
gist of the action depends upon the capacity of the child 
to perform acts of service " (y). 

The capricious working of the action for seduction in Gapricioua 
modem practice has often been the subject of censure. oFuielaw. 
Thus, Serjeant Manning wrote more than forty years ago: 
" the quasi fiction of seiritium amisit affords protection to 
the rich man whose daughter occasionally makes his tea, 
but leaves without redress the poor man whose child is 
sent unprotected to earn her bread amongst strangers " (s). 
All devices for obtaining what is virtually a new remedy 
by straining old forms and ideas beyond their original 
intention are liable to this kind of inconvenience. It has 
been truly said (a) that the enforcement of a substantially 
just claim " ought not to depend upon a mere fiction over 



16 L. J. Ex. 236, where the decla- 
ration was framed in treepass, it 
would seem porposely on the ohanoe 
of the court holding that the per 
quod MfvUium amint could be dis- 
pensed with. 

(m) See TetTff y. StUcMman, note 
{q) last page. 

{x) Irwin v. Dwrman (1809) 11 
East 23, 10 B. B. 423. 



(y) Eall ▼. Hollander (1825) 4 
B. & G. 660. But this case does 
not show that, if a jury ohoee to 
find that a veiy young child was 
capable of senrice, their Terdict 
would be disturbed. 

(«) Note to GHnn$ll ▼. JTelU, 7 
H. & a. 1044. 

(a) Starkie's note to Speight v. 
Olivw-a (1819) 2 Stark. 496. 



216 PEMONAL WRONGS. 

which the oourts possess no oontrol." We have ahreadj 
pointed out the bolder oouise which might have been 
taken without doing yiolence to any legal principle. Now 
it is too late to go back upon the cases, and legislation 
would also be difficult and troublesome, not so much from 
the nature of the subject in itself as from the variety of 
irrelevant matters that woidd probably be imported into 
any discussion of it at large. 

Ooiistrao« It would be merely curious, and hardly profitable in any 
in earlj just proportion to the labour, to inquire how far the fiction 
of constructive service is borne out by the old law of the 
action for beating or carrying away a servant. Early in 
the 15th century we find a dictum that if a man serves 
me, and stays with me at his own will, I shall have an 
action for beating him, on the ground of the loss of his 
service {b) : but this is reported with a quaere. A generation 
later {c) we find Newton C. J. saying that a relation of 
service between father and son cannot be presumed : ** for 
he may serve where it pleaseth him, and I cannot constrain 
him to serve without his good will : " this must apply only 
to a son of full age, but as to that case Newton's opinion 
is express that some positive evidence of service, beyond 
living with the parent as a member of the household, is 
required to support an action. Unless the case of a 
daughter can be distinguished, the modem authorities do 
not agree with this. But the same Year Book bears them 
out (as noted by Willes J.) (rf) in holding that a binding 
contract of service need not be shown. Indeed, it was 
better merely to allege the service as a fact {in servitio 
8U0 exisientem cepit)^ for an action under the Statute of 



{h) 11 Hen. IV. fo. 1-2, pi. 2, {e) 22 Hen. VI. 31 (a.d. 1443). 

per Hulfl J. (a.d. 1410). (rf) L. R. 2 0. ?. 621-2, 



MENACING SERVANTS OR TENANTS. 



217 



LabotireTB would not lie where there was a speoial oontraot 
Tarying from the retainer contemplated by the statute, 
and amounting to matter of covenant (^). 

A similar cause of action, but not quite the same, was Intimida- 
recognized by the medieval common law where a man's g^vwits 
servants or tenants at will (/) were compelled by force or ?^^- 
menace to depart from their service or tenure. *^ There is 
another writ of trespass/' writes Fitzherbert, '^against 
those who lie near the plaintiff's house, and will not suffer 
his servants to go into the house, nor the servants who are 
in the house to come out thereof " (g). Examples of this 
kind are not uncommon down to the sixteenth century or 
even later ; we find in the pleadings considerable vaiiety 
of circumstance, which may be taken as expansion or 
specification of the alia enormia regularly mentioned in the 
conclusion of the writ (A). 



{$) 22 Hen. YI. 32 b, per Cnr. 
(Newton G. J. ; Fulthorpe, Asoue 
or Ayscoghe, Portington JJ.) ; F. 
N. B. 168 P. 

(/) If the tenancy were not at 
wiU, the departure would be a 
breach of oontraot ; this introduoea 
a new element of difficulty, never 
ezpresaly faced by our courts be- 
fore Lumley v, Oye^ of which more 
elaewhere. 

(^) F. N. B. 87 N. ; and see the 
fonn of the writ there. It seema 
therefore that *' picketing," so 
soon as it exceeds the bounds of 
persuasion and becomes physical 
intimidation, is a trespass at oom- 
mon law ag^ainst the employer. 

(A) 14 Edw. rV. 7, pi. 13, a writ 
'* quare tenentes suos verberayit 
per quod a tenura sua recesse- 
runt"; 9 Hen. VII. 7, pi. 4, action 
for menacing plaintifTs tenants at 



will ** de yita et mutilatione mem- 
brorum, ita quod recesserunt de 
tenura" ; RasteU, Entries 661, 662, 
similar forms of declaration ; one 
(pi. 9) is for menacing the king's 
tenants, so that ** negotia sua 
palam incedere non audebant " ; 
Garret v. Taylor^ Oro. Jao. 667, 
action on the case for threatening 
the plaintiff's workmen and cut- 
tomertf '* to mayhem and yex them 
with suits if they bought any 
stones"; 21 Hen. VI. 26, pi. 9, 
"manassavit vulnerayit et Terbe- 
ravit": note that in this action 
the " vulnerayit" is not justifiable 
and therefore must be traversed, 
otherwise under a plea of ton 
assault demesne; 22 Ass. 102, pi. 76, 
is for actual beating, aggravated 
by carrying away timber of the 
plaintiff's {merimentum aa materia'- 
men, see Da OangCi s. v. materia ; 



218 



PERSONAL WBONQS. 



In the early years of ihe eighteenth oentury the genius 
of Holt found the way to nse this, together with other 
special olasses of authoritieSy as a foundation for the 
broader principle that ^^he that hinders another in his 
trade or Uvelihood is Uable to an action for so hindering 
him " {t)f subject, of course, to the exception that no 
wrong is done by pursuing one's own trade or livelihood 
in the accustomed manner though loss to another may 
be the result (A) and even the intended result (/). His- 
torically both this principle and that of Lumley v. Gye {m) 
are developments of the old ^^ per quod servitium amisit " ; 
but in the modem law they depend on different and much 
wider reasons, and raise questions which are not technical 
but fundamental. We shall therefore deal with them not 
here but under another head. 



in Anglo-Frenoh fneretme). In a.d. 
1200 an action is recorded against 
one John de Mewio for deforcing 
the plaintiff of land which she had 
already recovered against him hj 
judgment, ''bo that no one dare 
tiU that land hecauae of him, nor 
could she deal with it in an j way 
because of him " : Select Ciyil 
Fleas, Selden Soc. 1890, ed. Baildon, 
Yol. 1, pi. 7. Cp. Beg. Brey. (1696) 
104 a, *' quando tenentes non au- 
dent morari super tenuris suis," 
and Tarleton y. McOawley (1794) 1 



Feake 270, 3 B. B. 689, action for 
deterring negroes on the coast of 
Africa from trading with plaintiff's 
ship. 

(i) Keebk ▼. mekeringiU (1706) 
11 East 674 »; 11 B. B. 272 n. 
Gp. Select OItU Fleas, yol. 1, 
pi. 106. 

(h) 11 East 676; tupra, p. 136. 

(/) Mogul Steamship Co, y. Jfc- 
Gregor, '92, A. G. 26. 

(m) 2 E. & B. 216, 22 L. J. Q. B. 
463 (1863). 



219 



CHAPTBB Vn. 

DEFAMATION. 

Befutation and honour are no less preoions to good men Civil and 
than hodily safety and freedom. In some cases they may junsdic- 
be dearer than life itself. Thus it is needful for the peace ^tin- 
and well-being of a civilized commonwealth that the law g^^ifll^ed. 
should protect the reputation as well as the person of the 
citizen. In our law some kinds of defamation are the 
subject of criminal proceedings, as endangering public 
order, or being offensive to public decency or morality. 
We are not here concerned with libel as a criminal 
offence, but only with the civil wrong and the right to 
redress in a civil action : and we may therefore leave aside 
all questions exclusively proper to the criminal law and 
procedure, some of which are of great difficulty (a). 

The wrong of defamation may be committed either by Slander 
way of speech, or by way of writing or its equivalent, ^tdn- 
For this purpose it may be taken that significant gestures fif'*^®^- 
(as the finger- language of the deaf and dumb) are in the 
same case with audible words ; and there is no doubt that 
drawing, printing, engraving, and every other use of per- 
manent visible symbols to convey distinct ideas, are in the 
same case with writing. The term slander is appropriated to 
the former kind of utterances, libel to the latter (aa). Using 

« 

(a) Such as the definition of (aa) Quar0, whether defamatory 

blasphemous libel, and the grounds matter recorded on a phonograph 
on which it is ponishable. would be a libel or onlj a potential 

slander. 



220 



DEFAMATION. 



I 



the terms " written " and ** spoken V in an extended sense, 
to include the analogous oases just mentioned, we may say 
that slander is a spoken and libel is a written defamation. 
The law has made a great difference between the two. 
Libel is an offe nce as well as a wron^gj but sl ander is a 
civil wrong only (6). "Written utterances are, in the ab- 
sence of special ground of justification or excuse, wrongful 
as against any person whom they tend to bring into 
hatred, contempt, or ridicule. Spoken words are action- 
able only when special damage can be proved to have been 
their proximate consequence, or when they convey impu- 
tations of certain kinds. 

No branch of the law has been more fertile of litigation 
than this (whether plaintiffs be more moved by a keen 
sense of honour, or by the delight of carrying on personal 
controversies under the protection and with the solemnities 
of civil justice), nor has any been more perplexed with 
minute and barren distinctions. This latter remark applies 
especially to the law of slander ; for the law of libel, as a 
civil cause of action, is indeed overgrown with a great mass 
of detail, but is in the main su£Sciently rational. In a 
work like the present it is not possible to give more than 
an outline of the subject. Those who desire full informa- 
tion will find it in Mr. Blake Odgers' excellent and ex- 
haustive monograph (c). We shall, as a rule, confine our 
authorities and illustrations to recent cases. 



(b) Seandalum magnatum was, 
and in sfcriotnees of law still might 
be, an exception to thia: Blake 
Odgers, Digest of the Law of 
Libel and Slander, 134^137. Mr. 
Odgers has not found any ease 
after 1710. There is a curioos 
14th cent, case of teandalum moff^ 



natum in 30 Ass. 177, pi. 19, where 
the defendant only made matters 
worse by alleging that the plaintiff 
was excommunicated by the Pope. 
(e) A Digest of the Law of Libel 
and Slander, &o. By W. Blake 
Odgers, London, 2nd ed. 1887. 



8LA^£B AND LIBEL. 



221 



1. — Slander. 

Slander is an actionable wrong when speoial damage When 
can be shown to have followed from the utterance of the aotio^Ue. 
words complained of, and also in the following oases : 
1 Where the words impute a crimincd offence. 

Where they impute having a contagious disease which 
would cause the person having it to be excluded from 
society. 

Where they convey a charge of unfitness, dishonesty, or 
incompetence in an office of profit, profession, or 
trade, in short, where they manifestly tend to pre- 
\ judice a man in his calling. 

Spoken words which afford a cause of action without 
proof of special damage are said to be actionable per ae : 
the theory being that their tendency to injure the plain- 
tiff's reputation is so manifest that the law does not require 
evidence of their having actually injured it. There. is 
much cause however to deem this and other like reasons 
given in our modem books mere afterthoughts, devised 
to justify the results of historical accident: a thing so 
common in current expositions of English law that we 
need not dwell upon this example of it (d). 

No such distinctions exist in the case of libel: it is Meaning 
enough to make a written statement primd fade libellous %ci/^"*^ 
that it is injurious to the character or credit (domestic, liWlous." 
public, or professional) of the person concerning whom it 



(<Q See Blake Odgen, pp. 2 — i, 
and 6 Amer. Law Bey. 693. It 
seems odd that the law should 
presume damage to a man from 
printed matter in a newspaper 
which, it may be, none of his 
acquaintances are likely to read, 
and refuse to presume it from the 



direct oral oonmiunioation of the 
same matter to the persons most 
likelj to act upon it. Mr. Joseph 
B. Fisher, in Law Quart. Bey. x. 
168, traces the dintinotion to " the 
adaptation by the Star Chamber of 
the later Boman law of libelkti 



222 DEFAMATION. 

is uttered, or in any way tends to cause men to shun his 
sooiety, or to bring him into hatred, contempt, or ridicule. 
When we call a statement prima fade libellous, we do not 
mean that the person making it is necessarily a wrong- 
doer, but that he will be so held imless the statement is 
found to be within some recognized ground of justification 
or excuse. 

Such are the roles as to the actionable quality of words, 
if that be a correct expression. The authorities by which 
they are illustrated, and on which they ultimately rest, 
are to a great extent antiquated or trivial {e) ; the rules 
themselves are well settled in modem practice. 

Special Where " special damage " is the ground of action, we 

have to do with principles already considered in a former 
chapter (/) : namely, the damage must be in a legal sense 
the natural and probable result of the words complained 
of. It has been said that it must also be " the leg^ and 
natural consequence of the words spoken " in this sense, 
that if A. speaks words in disparagement of B. which are 
not actionable per se^ by reason of which speedb C. does 
something to B.'s disadvantage that is itself wrongful as 
against B. (such as dismissing B. from his service in breach 
of a subsisting contract), B. has no remedy against A., but 
only against C. {g). But this doctrine is contrary to prin- 
ciple : the question is not whether C.'s act was lawful or 
unlawful, but whether it might have been in fact reason- 
ably expected to residt from the original act of A. And, 
though not directly overruled, it has been disapproved 



{e) The old abridgments, s.g, reported by Coke, 4 Bep. 12 h — 

BoUe, sub tit. Action sor Gaae, 20 h. 
Pur ParollB, aboond in examples, (/) P. 28, above, 

many of them suffidentlj gro« (^) Vicara y. Wikoeki (1806) 8 

teeque. A select group of caaee is East 1, 9 B. B. 361. 



slander: special damage. 



223 



by so muoh and such weighty authority that we may say 
it is not law (A). There is authority for the proposition 
that where spoken words, defama|x)ry but not actionable in 
themselves, are followed by spedal damage, the oause of 
action is not the original speaking, but the damage 
itself (0- This does not seem to aSeot the general test of 
liability. Either way the speaker will be liable if the 
damage is an intended or natural consequenoe of hiS| 
words, otherwise not. 

It is settled however that no cause of action is afforded B^petition 
by special damage arising merely from the voluntary w<^.^ 
repetition of spoken words by some hearer who was not 
under a legal or moral duty to repeat them. Such a con- 
sequence is deemed too remote {J). But if the first speaker ( 
authorized the repetition of what he said, or (it seems) I 
spoke to or in the hearing of some one who in the per- ' 
f ormance of a leg^, o£Scia1, or moral duty ought to repeat ' 
it, he will be liable for the consequences (k), I 

Losing the general good opinion of one's neighbours, Special 
consortium vicinorum as the phrase goes, is not of itself invob^ a 
special damage. A loss of some material advantage must ?!?"^*li 
be shown. Defamatory words not actionable per se were loss, 
spoken of a member of a religious society who by reason 
thereof was excluded from membership : there was not 
any allegation or proof that such membership carried with 



(A) Zffneh ▼. Kniffht (1861) 9 H. 
L. G. 677. See notes to Vteara y. 
JTilcoeka, in 2 Sm. L. 0. 

(«) Manle J. ex relat, Bramwell 
L. J., 7 Q. B. D. 437. 

U) Farkint v. 8eoU (1862) 1 H. 
& G. 163, 31 L. J. Ex. 331 (wife 
repeated to her hiuband groas 
langoage used to hereelf, where- 



fore the husband was so much hurt 
that he left her). 

(k) Bhike Odgers 381. Siding 
Y. Smith (1876) 1 Ex. D. 91, 46 
L. J. Ex. 281, mast be taken not 
to interfere with this distinction, 
see per G. A. in Rateliffe v. Evansy 
'92, 2 Q. B. 624, 634, 61 L. J. 
Q. B. 636. 



224 DEFAMATION. 

it as of right any definite temporal advantage. It was 
held that no loss appeared beyond that of comortium 
vicinorum^ and therefore there was no ground of action (/). 
Yet the loss of consortium as between husband and wife is 
a special damage of which the law will take notice (m), 
and so is the loss of the voluntary hospitality of friends, 
this last on the ground that a dinner in a friend's house 
and at his expense is a thing of some temporal value (n). 
Actual membership of a club is perhaps a thing of tem- 
poral value for this purpose, but the mere chance of being 
elected is not : so that an action will not lie for speaking 
disparaging words of a candidate for a dub, by means 
whereof the majority of the club decline to alter the rules 
in a manner which would be favourable to his election. 
" The risk of temporal loss is not the same as temporal 
loss " (o). Trouble of mind caused by defamatory words 
is not BufBcient special damage, and illness consequent 
upon such trouble is too remote. '* Bodily pain or suffer- 
ing cannot be said to be the natural result in all per- 
sons" (p). 

Impnta- As to the several classes of spoken words that may be 
ci^dnal actionable without special damage: words sued on as 
offence, imputing crime must amount to a charge of some offence 
which, if proved against the party to whom it is imputed, 
would expose him to imprisonment or other corporal 
penalty (not merely to a fine in the first instance, with 
possible imprisonment in default of payment) {q). The 

(/) Jtoberti r, Roberts (1864) d B. Q. B. Dir. 407 ; per Bowen L. J. 

6 8. 384, 33 L. J. Q. B. 249. at p. 416, 62 L. J. Q. B. 277. The 
(m) Lynch y. Knight^ 9 H. L. C. damage was also held too remote. 

677. {p) Allaop y. AlHop (1860) 6 H. 

(n) DavietY, Solomon (1871) L. B. & N. 534, 29 L. J. Ex. 316. 

7 Q. B. 112, 41 L. J. Q. B. 10. (q) This is the true distinotion : 
{o) Chamberlain y. JSoyd (1883) 11 it matters not whether the offence 



SLANDER : IMPUTATION OP CRIME. 



225 



offence need not be specified with legal precision, indeed 
it need not be specified at all if the words impute felony 
generally. But if particulars are given they must be 
legally consistent with the offence imputed. It is not 
actionable per se to say of a man that he stole the parish 
bell-ropes when he was churchwarden, for the legal pro- 
perty is vested in him ex officio (r) ; it might be otherwise 
to say that he fraudulently converted them to his own use. 
The practical inference seems to be that minute and 
copious vituperation is safer than terms of general re- 
proach, such as ^'thief,'' inasmuch as a layman who enters 
on details will probably make some impossible combination. 
It is not a libel as against a corporation (though it may 
be as against individual members or officers) to charge the 
body as a whole with an offence which a corporate body 
cannot commit (a). 

False accusation of immorality or disreputable conduct Other 
not punishable by a temporal court is at common law not mere im- 
actionable per ae, however gross. The Slander of Women ^^'^^^n. 
Act, 1891 (54 & 55 Vict. o. 51), has abolished the need a^^- 
01 showing special damage in the case of " words . . . -vromm 
which impute unchastity or adultery to any woman or ^*^- 
girl." The courts might without violence have presumed 



be indictable or putuBhable by a 
court of Bimmiary juriadiction : 
WM Y. BMvan (1883) 11 Q. B. D. 
609, 52 L^ J. Q. B. 544. In the 
United States the reoetved opinion 
is that snbh words are actionable 
only <* in case the charge, if tme, 
will subject the party charged to 
an indictment for a crime involTing 
moral turpitude; or subject him to 
an infamous punishment : ' * Brooker 
y. Coffin (1809) 5 Johns. 188, Bige- 
low L. 0. 77, 80 ; later authorities 

P. 



ap, Oooley on Torts, 197. 

(r) Jackson y. Adanu (1835) 2 
Bing. N. 0. 402. The words were 
''who stole the parish bell-ropes, 
you scamping rascal P " If spoken 
while the plaintiff held the office, 
they would probably haye been 
actionable, as tending to his pre- 
judice therein. 

(#) Mayor of Manchester y. WiU 
liams, '91, 1 Q. B. 94, 60 L. J. 
Q. B. 23. As to defamation in the 
way of business, see p. 227, below. 

Q 



226 



DEFAMATION. 



that a man's reputation for oourage, honooTy and trathfal- 
nefis, a woman's for chastity and modest conduct, was 
something of which the loss would naturallj lead to 
damage in any lawful walk of life. But the rule was 
otherwise {t)^ and remains so as regards all slander of this 
kind against men, and against women also as regards all 
charges of improper conduct short of unchastity, which yet 
may sometimes be quite as vexatious, and more mischievous 
because more plausible. The law went wrong from the 
beginning in making the damage and not the insult the 
cause of action ; and this seems the stranger when we have 
seen that with regard to ^sault a sounder principle is well 
established (m). 

A person who has committed a felony and been con- 
victed may not be called a felon after he has undergone 
the sentence, and been discharged, for he is then no longer 
a felon in law (r). 



Imputa- Little need be said concerning imputations of contagious 
oontagiouB disease unfitting a person for society : that is, in the 
modem law, venereal disease {x). The only notable point 
is that '' charging another with having had a contagious 
disorder is not actionable; for unless the words spoken 
impute a continuance of the disorder at the time of speak- 
ing them, the gist of the action fails ; for such a charge 
cannot produce the efiPect which makes it the subject of an 



(/) The technical reason was that 
ohargpes of inoontinenoe, heresy, &c. , 
were ** spiritual defamation," and 
the matter detenmnable in the 
Eoolesiastical Court acting pro 
salute animae. See Davit v. Oar* 
diner, 4 Go. Bep. 16 b ; Palmer y. 
Thorpe, ib, 20 a. 

(m) p. 197, aboTO. 



{y) Leyman y. LatifMr (1878) 3 
Ex. Diy. 352, 47 L. J. Ex. 470. 
There are some onrions analogies to 
these refinements in the Italian 
sixteenth - century books on the 
point of honour, such as Alciato's. 

{x) Jjeproify and, it is said, the 
plague, were in the same category. 
Small-pox is not. See filake Odgers 
64. 



SIANDER : IN OFFICE OR BUSINESS. 227 

aotion, namelj, his being avoided by society " (y). There 
does not seem to be more than one reported English oaae 
of the kind within the present century {z). 

Concerning words spoken of a man to his disparagement EyQ- 
in his office, profession, or other business: they are action- ^Xmau 
able on the following conditions : — ^They must be spoken of "^ ^^ ^^^ 
him in relation to or " in the way of '* a position which he buamees. 
holds, or a business he carries on, at the time of speaking. 
Whether they have reference to his office or business is, in 
case of doubt, a question of fact. And they must either 
amount to a direct charge of incompetence or unfitness, or 
impute something so inconsistent with competence or 
fitness that, if believed, it would tend to the loss of the 
party's employment or business. To call a stonemason a 
'^ ringleader of the nine hours system " is not on the face 
of it against his competence or conduct as a workman, 
or a natural and probable cause why he should not get 
work ; such words therefore, in default of anything show- 
ing more distinctly how they were connected with the 
plaintiff's occupation, were held not to be actionable (a). 
Spoken charges of habitual immoral conduct against a 
clergyman or a domestic servant are actionable, as na* 
turally tending, if believed, to the party's deprivation 
or other ecclesiastical censure in the one case, and dis- 
missal in the other. Of a clerk or messenger, and even 
of a medical man, it is otherwise, unless the imputation 
is in some way specifically connected with his occupation. 
It is actionable to charge a barrister with being a dunce, 
or being ignorant of the law; but not a justice of the 

(y) Cartlak^Y, Mapledoram {nSS) jadgment runs thius: "This case 

2 T. B. 473, Bigebw L. G. 84, per falls within the prinoiple of the old 

Afihhant J. authoritiefl." 

(«) Bhotkocrth T. Oray (1844) 7 (a) MilUr t. David (1874) L. B. 

M. & Gt. 834. The whole of the 9 0. P. 118, 48 L. J. 0. P. 84. 

q2 



228 DEFAMATION. 

peace, for he need not be learned. It is actionable to 
charge a solicitor with cheating his clients, but not with 
cheating other people on occasions unconnected with his 
business (ft). But this must not be pressed too far, for it 
would seem to be actionable to charge a solicitor with any- 
thing for which he might be struck ofi the roll, and the 
power of the court to strike a solicitor oflE the roll is not 
confined to cases of professional misconduct (c). 

It makes no difEerence whether the oflBce or profession 
cames with it any legal right to temporal profit, or in 
point of law is wholly or to some extent honorary, as in 
the case of a barrister or a fellow of the College of Phy- 
sicians ; but where there is no profit in fact, an oral charge 
of unfitness is not actionable imless, if true, it would be a 
ground for removal {d). Nor does it matter what the 
nature of the employment is, provided it be lawful {e) ; or 
whether the conduct imputed is such as in itself the law 
will blame or not, provided it is inconsistent with the due 
fulfilment of what the party, in virtue of his employment 
or office, has undertaken. A gamekeeper may have an 
action against one who says of him, as gamekeeper, that he 
trapped foxes (/) . As regards the reputation of traders the 
law has taken a broader view than elsewhere. To impute 
insolvency to a tradesman, in any form whatever, is 
actionable. Substantial damages have been given by a 
juiy, and allowed by the court, for a mere clerical error 
by which an advertisement of a dissolution of partnership 
was printed among a list of meetings under the Bankruptcy 



{b) Lityky t. RoherU (1837) 3 G. A. 

Bing. N. G. 835, and authorities {e) L. B. 2 Ex. at p. 330. 

there dted. (/) Foulger y. Neweomb (1867) 

(c) lU JFeare, '93, 2 Q. B. 439. L. B. 2 Ex. 327, 36 L. J. Ex. 

{d) Ahxander y. Jenkim, '92, 1 169. 
Q. B. 797, 61 L. J. Q. B. 634, 



I 



INDIRECT DAMAGE TO BUSINESS. .229 

Act (ff). A trading oorporation may be defamed in rela- 
tion to the oondnot of its businesB (A). 

There are oasee, though not oommon in our books, in WotcU 
which a man suffers loss in his business as the intended or canmng 
" natural and probable result " of words spoken in relation ^^£^ 
to that business, but not airainst the man's own charaoter p ^ 
or conduct: as where a wife or servant dwelling at his 
place of business is charged with misbehaviour, and the 
credit of the business is thereby impaired: or where a 
statement is made about the business not in itself defama- 
tory, but tending to a like result, such as that the firm has 
ceased to exist {i). In such a case an action lies, but is not 
properly an action of slander, but rather a special action 
(on the case in the old system of pleading) '^ for damage 
wilfully and intentionally done without just occasion or 
excuse, analogous to an action for slander of title." 
General loss of business is sufficient " special damage " to 
be a cause of action in such a case {k). 



2. — Defamation in general. 

We now pass to the general law of defamation, which Rules as 
applies to both slander and libel, subject, as to slander, to mataon' 
the conditions and distinctions we have just gone through. fironeraUy. 
Considerations of the same kind may affect the measure of 

{ff) Blake Odgers 80 ; Shepheardr, B. 635. 

WhitaJc&r (1875) L. R. 10 G. P. 502. (k) Raielife t. Ewrnt, last note ; 

(A) South Hetton Coal Co, t. JV: E. cp. Hartley y. Herring (1799) 8 T. 

JVhr<.iM(M;ta^fon, '94, 1Q.B. 133,9 R. 130, 4 R. R. 614; Biding y. 

R. Apr. 170 (this was apristedlibel, Smith (1876) 1 Ex. D. 91, 45 L. J. 

but the principle seems equally Ex. 281, must be justified, if at all, 

applicable to spoken words). as a case of this class : *92, 2 Q. B. 

(f) Per 0. A., Baielifi y. Evans, at p. 534. 
'92, 2 Q. B. 524, 527, 61 L. J. Q. 



280 



DEFAHATIOK. 



damages for written defamation, though not the right of 
action itself. 



« Implied 
malice." 



It is commonly said that defamation to be actionable 
must be malicious, and the old form of pleading added 
" maliciously " to " falsely." Whatever may have been 
the origin or the original meaning of this language (/), 
malice in the m odem law signifies neither more nor leas, 
in this co nnexion^ t lian the absence of just ^^f*^ ^^ 
excuse (m) ; and to say that the law implies malice from 
the publication of matter calculated to oonvey an action- 
able imputation is only to say in an artificial form that 
the person who so publishes is responsible for the natural 
consequences of his act(n). '* Express maUoe" means 
something different, of which hereafter. 



What if 
publioa- 
tion. 



Evil-speaking, of whatever kind, is not actionable if 
communicated only to the person spoken of. The cause of 
action is not insult, but proved or presumed injury to 
reputation. Therefore there must be a commimication by 
the speaker or writer to at least one third person ; and this 
necessary element of the wrongful act is technically called 
publication. It need not amount to anything like publica- 
tion in the common usage of the word. That an open 
message passes through the hands of a telegraph derk (o), 
or a manuscript through those of a compositor in a print- 
ing-office (i>), or a letter dictated by a principal is taken 



(Q SeeBigelowL. C. 117. 

(m) Bayley J. in Bromage y. 
JVofMT (1826) 4 B. & G. at p. 253, 
Bigelow L. G. 137 : " HaUoe in 
oommon aoceptation means iU-will 
against a person, Imt in its legal 
sense it means a wrongful act done 
intentionally without just cause or 
excuse : *' so too littledale J. in 



MePhiraon t. DanieU (1829) 10 B. 

6 G. 272. 

(») Lord Blackburn In Capital 
and CouutUt Bank t. Smt^ (1882) 

7 App. Ga. 787, 62 L. J. Q. B. 232. 
(o) See WiaiamMnT,Frefr{\S7i) 

L. B. 9 G. P. 398, 43 L. J. G. P. 
161. 
{p) Printing is for this reason 



\' 



PUBLICATION. 



231 



down in ehorthand and type-written by a dlerk {q)y is 
enough to constitute a publication to those persons if the j 
are capable of understanding the matters so delivered to 
them. The opening of a letter addressed to a firm by a 
clerk of that firm authorized to open letters is a publication 
to him (q). Every repetition of defamatory words is a new 
publication, and a distinct cause of action. The sale of a 
copy of a newspaper, published (in the popular sense) many 
years ago, to a person sent to the newspaper office by the 
plaintifE on purpose to buy it, is a fresh publication (r). 
It appears on the whole that if the defendant has placed 
defamatory matter within a person's reach, whether it is 
likely or not that he will attend to the meaning of it, this 
throws on the defendant the burden of proving that the 
paper was not read, or the words heard by that person ; 
but if it is proved that the matter did not come to his 
knowledge, there is no publication (s), A person who is 
an unconscious instrument in circulating libellous matter, 
not knowing or having reason to believe that the document 
he circulates contains any such matter, is free from liability 
if he proves his ignorance. Such is the case of a news- 
vendor, as distinguished from the publishers, printers, and 
owners of newspapers. " A newspaper is not like a fire ; 
a man may carry it about without being bound to suppose 
that it is likely to do an injury " {i). If A is justified in 



prima fads a pnblicatioii, Baldwin 
T. JElphinsUm, 2 W. Bl. 1037. 
There are obvious exoeptions, aa if 
the text to be printed is Arabic or 
Chinese, or the message in cipher. 
{q) FuUman t. SiU i Co., '91, 1 
Q. B. 524, 60 L. J. Q. B. 299, 
0. A. Bat if the occasion of the 
letter is privileged as regards the 
principal, the publication to the 
derk in the usual course of office 



bufdness is privileged too. Box»iu9 
V. GobUt Frhet, *94, 1 Q. B. 842, 
9lt. Mar. 211, 0. A. 

(r) Duke of Brutmciek v. Harmer 
(1849) 14 Q. B. 186, 19 L. J. Q. B. 
20. 

(<) Blake Odgers 154. 

(0 Bmment v. FoUh (1885) 16 
Q. B. Div. 354, per Bowen L. J. 
at p. 358, 55 L. J. Q. B. 51. But 
it seems the vendor would be liable 



232 



DEFAMATION. 



making a disparaging oommunioation about B.'b oharaoter 
to 0. (as, under certain oonditions, we Bhall see that he 
may be), it follows, upon the tendency and analogy of the 
authorities now before us, that this will be no excuse if, 
exchanging the envelopes of two letters by inadvertence, 
or the like, he does in fact communicate the matter to D. 
It has been held otherwise, but the decision was never 
generally accepted, and is now overruled {u). In fact, as 
had been suggested in former editions of this book, it could 
not stand with the earlier authorities on '^ publication." 

Sending a defamatory letter to a wife about her husband 
is a publication : ** man and wife are in the eye of the law, 
for many purposes, one person, and for many purposes " — 
of which this is one — " different persons " {x). 



Vioariona 

publica- 

tion. 



On the general principles of liability, a man is deemed 
to publish that which is published by his authority. And 
the authority need not be to publish a pajticular form of 
words. A general request, or words intended and acted 
on as such, to take public notice of a matter, may make 
the speaker answerable for what is published in conformity 
to the general ^' sense and substance " of his request {y), 

A person who is generally responsible for publication 
(such as an editor), and who has admitted publication, is 



if he had reason to know that the 
publication contained, or was likely 
to contain, libelloiu matter. 

(m) Tompaon v. Lathwood (1883) 
11 Q. B. D. 43, 62 L. J. Q. B. 425, 
waa oyerroled \fj Hebditeh v. MaC' 
Iltcaine, '94, 2 Q. B. 64, 9 B. Jnlj, 
204, G. A. See pp. 262-3, below. 

(x) Wenman y. Aih (1863) 13 
C. B. 836, 22 L. J. G. P. 190, per 
Manle J. Bat commnnication by 
the defendant to his wife is not a 



publication: Wmnhak y. Marfan 
(1888) 20 Q. B. D. 636, 67 L. J. 
Q. B. 241. 

{y) Farkea t. Breteott (1869) L. 
B. 4 Ex. 169, 38 L. J. Ex. 106, 
Ex. Gh. Whether the partionlar 
publication is within the anthority 
is a question of fact. All the 
Gourt decide is that rerbal dicta* 
tion or approval by the principal 
need not be shown. 



INNUENDO. 233 

not 88 a rule bound to disoloBe the name of the aotual 
author («). 

Supposing the authorship of the words complained of to Constnio- 
be proved or admitted, many questions may remain. words : 

The construction of words alleged to be libellous (we ♦'^•'*'^* 
shall now use this term as equivalent to ^^ defamatory," 
unless the context requires us to advert to any distinction 
between libel and slander) is often a matter of doubt. In 
the first place the Court has to be satisfied that they are 
capable of the defamatory meaning ascribed to them. 
Whether they are so is a question of law (ol. If they are, 
and if there is some other meaning which they are also 
capable of, it is a question of fact which meaning they did 
convey imder all the circumstances of the publication in 
question. An averment by the plaintiff that words not 
libellous in their ordinary meaning or without a special 
application were used with a specified libellous meaning or 
application is called an innuendo^ from the old form of 
pleading. The old cases contain much minute, not to say 
frivolous, technicality; but the substance of the doctrine is 
now reduced to something like what is expressed above. 
The requirement of an innuendo, where the words are not 
on the face of them libellous, is not affected by the aboli- 
tion of forms of pleading. It is a matter of substance, for 
a plaintiff who sues on words not in themselves libellous, 
and does not allege in his claim that they conveyed a 
libellous meaning, and show what that meaning was, has 
failed to show any cause of action {b). Again, explanation 

(2) Oibion T. JSvofu (1889) 23 Q. capable of such a meaning, aee 

B. D. 384, 68 L. J. Q. B. 612. MuUigan y. CoU (1876) L. B. 10 

(0) Capital and Cou niuu Bank v. Q. B. 549, 44 L. J. Q. B. 153 ; 

^ .ggijy (1882) 7 App. Ca. 741, 52 for one on the other aide of the line, 

L. J. Q. B. 232, where the Uw Sort y. WaU (1877) 2 C. P. D. 146, 

IB eUboratelj disciuaed. For a 46 L. J. G. P. 227. 

shorter example of worcb held, (b) See 7 App. Ca. 748 (Lord 

upon conrideration, not to be Selbome). 



234 DEFAMATION. 

is required if the words have not, for judicial ptirpoees, any 
received ordinarj meaning at all, as being foreign, pro- 
vincial, or the like(c). This however is not quite the 
same thing as an innuendo. A libel in a foreign lang^uage 
might need both a translation to show the ordinary mean- 
ing of the words, and a distract further innuendo to show 
that they bore a special injurious meaning. 

Libelloiu The actionable or innocent character of words depends 
mast be ^^^ On the intention with which they were published, but 
mUw^imd ^^ *^®^ actual meaning and tendency when published (rf). 
prored in A man is bound to know the natural effect of the language 
he uses. But where the plaintiff seeks to put an action- 
able meaning on words by which it is not obviously con- 
veyed, he must make out that the words are capable of that 
meaning (which is matter of law) and that they did con- 
vey it (which is matter of fact) : so that he has to con- 
vince both the Court and the jury, and will lose his cause 
if he fail with either (e). Words are not deemed capable 
of a particular meaning merely because it might by possi- 
bility be attached to them : there must be something in 
either the context or the circumstances that would suggest 
the alleged meaning to a reasonable mind (/). In scho- 
lastic language, it is not enough that the terms should be 
" patient " of the injurious construction ; they must not 
only suffer it, but be fairly capable of it. And it is left 
to the jury, within large limits, to find whether they do 
convey a serious imputation, or are mere rhetorical or 
jocular exaggeration (^). 

(«) Blake Odgers 109—112. Lord Bramwell, ib. 792, << I think 

{ij 7 App. Ca. 768, 782, 790, of. that the defamer 10 he who, of 

p. 787. many inferenoee, ohooaoB a defa- 

(t) Lord Blackburn, 7 App. €9a. matoiy one." 

776. (^) Australian Newipaper Cb* T. 

(/) Lord Selbome, 7 App. Ca. 3mmeit, 6 B. Sept. 36, P. 0. 
744; Lord Blaokbom, ib. 778; 



BEPETITION. 



235 



The pubUoation is no less the speaker's or writer's own Repetl- 
aoty and none the less makes him answerable, because he teporta 
only repeats what he has heard. libel may consist in a ™b^^. 
fair report of statements which were actually made, and on 
an occasion which then and there justified the original 
speaker in making them (g) ; slander in the repetition of & 
rumour merely as a rumour, and without expressing any 
belief in its truth (A). ^'A man may wrongfully and 
maliciously repeat that which another person may have 
uttered upon a justifiable occasion," and '^ as great an 
injury may accrue from the wrongful repetition as from 
the first publication of slander ; the first utterer may have 
been a person insane or of bad character. The person who 
repeats it gives greater weight to the slander" {%). Cir- 
cumstances of this kind may count for much in assessing 
damages, but they count for nothing towards determining 
whether the defendant is liable at all. 

From this principle it follows, as regards spoken words, 
that if A. speak of Z. words actionable only with special 
damage, and B. repeat them, and special damage ensue 
from the repetition only, Z. shall have an action against 
B., but not against A. (k). As to the defendant's belief in 
the truth of the matter published or republished by him, 
that may affect the damages but cannot affect the liability. 
Good faith occurs as a material legal element only when 
we come to the exceptions from the general law that a man 
utters defamatory matter at his own peril. 



(ff) Fureell t. 8ou>Ur (1877) 2 C. 4tli BeMlution reported inthe^ar/ 

P. DiT. 215, 46 L. J. O.F. 308. of Northampton' 9 ease, 12 Co. Bep. 

(A) Watkin v. MaU (1868) L. B. 134, is not law. See per Parke J., 

3 Q. B. 396, 37 L. J. Q. B. 125. 10 B. & G. at p. 275. 

(t) LitUedale J., MeFherson t. {k) See JParkim t. Seott (1862) 1 

Daniels (1829) 10 B. ft G. 263, 273, H. ft G. 153, 31 L. J. Ex. 331, 



adopted by Blaokbnzn J., L. B. 3 p. 223, above. 
Q. B. 400. The latter part of the 



236 



DEFAMATION. 



3. — JExceptiona. 
Exoep- •\ye now have to mention the conditions which exclude, 

ticms: fair , ... 

oommeat. if present, liability for words apparently injurious to 
reputation. 

Nothing is a libel which is a fair comment on a subject 
fairly open to public discussion. This is a rule of common 
right, not of allowance to persons in any particular situa- 
tion (/) ; and it is not correct to speak of utterances pro- 
tected by it as being privileged. A man is no more 
privileged to make fair comments in public on the public 
conduct of others than to compete fairly with them in 
trade, or to build on his own land so as to darken their 
newly-made windows. There is not a cause of action 
with an excuse, but no cause of action at all. '^The 
question is not whether the article is privileged, but 
whether it is a libel " (w). This is settled by the leading 
case of Campbell v. Spottisvooode (n), confirmed by the 
Court of Appeal in Merivale v. Carson (o). On the other 
hand, the honesty of the critic's belief or motive is no 
defence. The right is to publish such comment as in the 
opinion of impartial bystanders, as represented by the 
jury, may fairly arise out of the matter in hand. What- 
ever goes beyond this, even if well meant, is libellous. 
The courts have, perhaps purposely, not fixed any 
standard of " fair criticism " (/?) . One test very conmionly 
applicable is the distinction between action and motive ; 

(^ See per Bowen L. J., Meri- (o) (1887) 20 Q. B. Dir. 276, 

vaUy. Carton (1887) 20 Q. B. Biv. 68 L. T. 331. This mnst betaken 

at p. 282. to oyermle whatever was said to 

(m) Lord Esher M. B., 20 Q. B. the contrary in Hemcood y. Harri- 

Div. at p. 280. «o» (1872) L. B. 7 0. P. 606, 626, 

(») 3 B. & S. 769, 32 L. J. Q. B. 41 L. J. 0. P. 206. 

185 (1863). {p) Bowen L. J., 20 Q. B. Div. 

at p. 283. 



FAI^ OOMBiENT. 287 

public acts and perf oimanoeB may be freely censured as to 
their merits or probable consequences, but wicked or dis- 
honest motives must not be imputed upon mere surmise. 
Such imputations, even if honestly made, are wrongful, 
imless there is in fact good cause for them. ^^ Where a 
person has done or published anything which may fairly 
be said to have invited comment .... every one has a 
right to make a fair and proper comment ; and as long as 
he keeps within that limit, what he writes is not a libel ; 
but that is not a privilege at all. • . . Honest belief may 
frequently be an element which the jury may take into 
consideration in considering whether or not an alleged 
libel was in excess of a fair comment ; but it cannot in 
itself prevent the matter being libellous " {q). 

The case of a criticism fair in itself being proved to be 
due to unfair motives in the person making it is not known 
to have arisen, nor is it likely to arise, and it need not be 
here discussed (r). On principle it seems that the motive 
is inmiaterial ; for if the criticism be in itself justifiable, 
there is nothing to complain of, unless it can be said that 
comment proceeding from an indirect and dishonest in- 
tention to injure the plaintiff is not criticism at all («). 
Evidence tending to show the presence of improper motives 
might well also tend to show that the comment was not 
fair in itself, and thus be material on either view ; as on 
the other hand to say of some kinds of criticiBm that there 
is no evidence of malice is practically equivalent to saying 



{q) Blaokbiun J., CampMl v. Sampton (1879) 5 Ex. Div. 53, 49 

Spottinpoode, 32 L. J. Q. B. at p. L. J. Q. B. 120 ; and per Lord 

202 ; op. BowoQ L. J., 20 Q. B. Eaher M. B.» 20 Q. B. Di^. at 

DiT. at p. 284. p. 281. 

(r) See however Vattm r. Walter (<) Lord Eaher M. B., MerivaU 

(1868) L. B. 4 Q. B. at p. 96, 38 t. Cartm, 20 Q. B. Div. 275, 281. 
L. J. Q. B. 34, and Stevent v. 



238 DEFAMATION. 

there ia no evidence of the oomment being otherwise than 
fair (0. 

What is What acts and conduct are open to public comment is a 
comment, question for the Court, but one of judicial common sense 
majtter of j^^her than of technical definition. Subject-matter of this 
kind maj be broadly classed under two types. 

The matter may be in itself of interest to the common 
weal, as the conduct of persons in public offices or affairs {u)^ 
of those in authority, whether imperial or local (^), in 
the administration of the law, of the managers of public 
institutions in the affairs of those institutions, and the 
like. 

Or it may be laid open to the public by the voluntary 
act of the person concerned. The writer of a book offered 
for sale, the composer of music publicly performed, the 
author of a work of art publicly exhibited, the manager of 
a public entertainment, and all who appear as performers 
therein, the propounder of an invention or discovery 
publicly described with his consent, are all deemed to 
submit their work to public opinion, and must take the 
risks of fair criticism; which criticism, being itself a public 
act, is in like manner open to reply within commensurate 
limits. 

Whether What is actually fair criticism is a question of fact, 
is fair, provided the words are capable of beiug imderstood in a 

{t) On this ground the aotaal is a public officer, or at any rate 

decision in Hmwood t. Harriton, the conduct of public worship and 

note (o), p. 236, may haye been whatever is incidental thereto is 

right ; see howeyer the dissenting matter of public interest : KeUy y. 

judgment of Groye J. Tinling (1866) L. B. 1 Q. B. 699, 

(tf) Including the conduct at a 85 L. J. Q. B. 940, cp. Kelly y. 

public meeting of persons who Sherlock (1866) L. B. 1 Q. B. at 

attend it as private citizens : Dav%9 p. 689, 85 L. J. Q. B. 209. 
T. Duncan (1874) L. B. 9 C. P. 396, («) Fureell y. Sawler, 2 0. P. Div. 

43 L. J. 0. P. 186. A QLergyman 215, 46 L. J. 0. P. 308. 



FAIR COMMENT. 239 

sense beyond the fair (iihat is, honest) expression of an matter of 
iinf ayonrable opinion, however strong, on that which the UbeUona 
plaintiff has submitted to the public: this is only an t^pos- 
application of the wider principle above stated as to the ^^^®)- 
construction of a supposed libel (y). 

In literary and artistic usage criticism is hardly allowed 
to be fair which does not show competent inteUigenoe of 
the subject-matter. Courts of justice have not the means 
of applying so fine a test : and a right of criticism limited 
to experts would be no longer a common right but a 
privilege. 

The right of fair criticism will, of course, not cover 
untrue statements concerning alleged specific acts of mis- 
conduct (z), or purporting to describe the actual contents 
of the work being criticised (a). 

Defamatio n is not aotionablg^jl. thfi dfif^nflftaft Pho^*' Jiutifioa- 
that the d efamatory matter was true ; and if it was so, the grotrnd of 
purpose or motive with which it was published is irrelevant. *™*^* 
For although in the current phrase the statement of matter 
^* true in substance and in fact " is said to be justified, 
this is not because any merit is attached by the law to the 
disclosure of all truth in season and out of season (indeed 
it may be a criminal offence), but because of the demerit 
attaching to the plaintiff if the imputation is true, whereby 
he is deemed to have no ground of complaint for the fact 
being communicated to his neighbours. It is not that 
uttering truth always carries its own justification, but that 
the law bars the other party of redress which he does not 

{3/) MerimU Y, Ci{r«o» (1887) 20 (2) BavU y. Shepatone (1886) 

Q. B. Biv. 275, 58 L. T. 331; J. 0. 11 App. Oa. 187» 66 L.J. 

Jmnery. A'BeekeU (1871) L. R. 7 P. 0. 61. 

Q. B. 11, 41 L. J. Q. B. 14. Qu, (a) Merivale y. Carton (1887) 20 

whether the duaeutiiig judgment Q. B. Diy. 276, 68 L. T. 381. 
of LtiBh J. was not light. 



240 DEFAMATION. 

deserve. ThuB the old rule ia explained, that where truth 
IB relied on for justifloation, it must be specially pleaded ; 
the cause of action was confessed, but the special matter 
avoided the plaintiff's right (ft). "The law will not 
permit a man to recover damages *in respect of an injury 
to a character which he either does not or ought not to 
possess" (c). This defence, as authority and experience 
show, is not a favoured one. To adopt it is to forego the 
usual advantages of the defending party, and commit one« 
self to a counter-attack in which only complete success will 
be profitable, and failure will be disastrous. 

Miut be What the defendant has to prove is truth in substance, 

Bubstan- . . 

tialiy that is, he must show that the imputation made or 
^^"^^^ • repeated by him was true as a whole and in every 
material part thereof. He cannot justify part of a 
statement, and admit liability for part, without distinctly 
severing that which he justifies from that which he does 
not (d). What parts of a statement are material, in the 
sense that their accuracy or inaccuracy makes a sensible 
difference in the effect of the whole, is a question of 
fact(«). 

There may be a further question whether the matter 
alleged as justification is sufficient, if proved, to cover the 
whole cause of action arising on the words complained of ; 
and this appears to be a question of law, save so far as it 
depends on the fixing of that sense, out of two or more 
possible ones, which those words actually conveyed. It is 
a rule of law that one may not justify calling the editor 



{h) Compare the Bimilar doctrine {d) Fleming t. Dollar (1889) 23 

in treepass, which has peculiar con- Q. B. D. 388, 68 L. J. Q. B. 648. 

sequences. But of thia in its place. {e) Alexander y. North Eaetem 

(e) Littledale J., 10 B. ft G. at H, Co. (1866) 6 B. ft S. 340, 34 

p. 272. L. J. Q. B. 162. 



JUSTIFICATION BY TRUTH. 241 

of a journal a "felon editor" by showing that he was 
once convicted of felony. For a felon is one who has 
actually conunitted felony, and who has not ceased to be a 
felon by full endurance of the sentence of the law, or by a 
pardon ; not a man erroneously convicted, or one who has 
been convicted and duly discharged. But it may be for a 
jury to say whether calling a man a " convicted felon " 
imputed the quality of felony generally, or only conveyed 
the fact that at some time he was convicted (/). Where 
the libel charges a criminal offence with circumstances of 
moral aggravation, it is not a sufiScient justification to 
aver the committing of the offence without those circum- 
stances, though in law they may be irrelevant, or relevant 
only as evidence of some element or condition of the 
offence {g). The limits of the authority which the Court 
will exercise over juries in handling questions of " mixed 
fact and law " must be admitted to be hard to define in 
this and other branches of the law of defamation. 



Apparently it would make no difference in law that the Befen- 
defendant had made a defamatory statement without any belief 



un- 



belief in its truth, if it turned out afterwards to have been ™**®"*^- 
true when made : as, conversely, it is certain that the most 
honest and even reasonable belief is of itself no justifica- 
tion. Costs, however, are now in the discretion of the 
Court. 



In order that public duties may be discharged without Immtmitj 
fear, unqualified protection is given to language used in ben of 
the exercise of parliamentary and judicial functions. A j^*^^ ^^^ 
member of Parliament cannot be lawfully molested out- i^^dgeB. 

(/) Leyman v. Latimer (1878) 3 {g) HeUham t. Blackwood (1851) 

Ex. DiT. 352, 47 L. J. Ex. 470. 11 0. B. 128, 20 L. J. 0. P. 187, a 

yery curious case. 

P. E 



242 



DEFAMATION. 



side Parliament by civil action, or otherwise, on account 
of anything said by him in his place in either House (A), 
^n action will not lie against a judge for any words used 
by him in his judicial capacity in a court of justice (t). 
It is not open to discussion whether the words were or 
were not in the nature of fair comment on the matter in 
hand, or otherwise relevant or proper, or whether or not 
they were used in good faith. 



Other 
persons in 
judicial 
proceed- 
ingB. 



Parties, advocates, and witnesses in a court of justice 
are under the like protection. They are subject to the 
authority of the Court itself, but whatever they say in the 
course of the proceedings and with reference to the matter 
in hand is exempt from question elsewhere. It is not 
slander for a prisoner's counsel to make insinuations 
against the prosecutor, which might, if true, explain some 
of the facts proved, however gross and unfounded those 
insinuations may be (k) ; nor for a witness after his cross- 
examination to volunteer a statement of opinion by way of 
vindicating his credit, which involves a criminal accusation 
against a person wholly unconnected with the case (/). 
The only limitation is that the words must in some way 
have reference to the inquiry the Court is engaged in. 



(h) St. 4 Hen. Yin. o. 8 (Pro 
Bicaxdo Strode) ; BiU of Rights, 1 
Wm. & M. Bess. 2, o. 2, <<That 



the freedome of speech and de- 
bates or proceedings in Parljament 
onght not to be impeached or 
questioned in any court or place 
out of Parlyament." 

(i) Seott y. Siat^/teld (1868) L. B. 
8 Ex. 220, 87 L. J. Ex. 166 ; the 
protection extends to judicial acts, 
see the chapter of General Excep- 
tions above, pp. 104 — 106, and 
further illostrationB op. Blake 



Odgers 188. 

(k) MumUr y. Lamb (1883) 11 
Q. B. Div. 688, where authorities 
are collected. 

(/) Seaman y. NethereUft (1876) 2 
C. P. Diy. 63, 46 L. J. C. P. 128. 
But there is no priyileg^e for those 
who procure other persons to give 
false and defamatory evidence : 
Riee y. CorUdge (1876) 121 Mass. 
893, Ames, Sel. Ca. 616. For 
American views on the main ques- 
tion see Ames, op, cit, 438. 



JUDICIAL PRIVILEGE. 



243 



A dtily constituted military court of inquiry is for this 
purpose on the same footing as an ordinary court of 
justice (m). 80 is a select committee of the House of 
Commons (n). Statements coming within this rule are 
said to be '^ absolutely priTileged." The reason for pre- 
cluding all discussion of their reasonableness or good faith 
before another tribunal is one of public policy, laid down 
to the same efiEect in all the authorities. The law does not 
seek to protect a dishonest witness or a reckless advocate, 
but deems this a less evil than exposing honest witnesses 
and advocates to vexatious actions. 

As to reports made in the course of naval or military Reports of 
duty, but not with reference to any pending judicial pro- Sfco.**"* 
ceeding, it is doubtful whether they come omder this head 
or that of " qualified privilege." A majority of the Court 
of Queen's Bench has held (against a strong dissent), not 
exactly that they are " absolutely privileged," but that an 
ordinary court of law will not determine questions of naval 
or military discipline and duty. But the decision is not 
received as conclusive (0). 



(m) Dawhim y. Lord Bokehy 
(1873-6) Ex. Gh. and H. L., L. R. 
8 Q. B. 265, 7 H. L. 744, 46 L. J. 
Q. B. 8, see opinion of judges 7 
H. L. at p. 762 ; Bawkim y. Frinee 
Edward of Saxd Weimar (1876) 1 
Q. B. D. 499, 46 L. J. Q. B. 667. 

(ff) Gi^ y. JOwneUy (1881) 6 
Q. B. D. 307, 60 L. J. Q. B. 303. 
A lioenong meeting of a Gonnty 
Gonnoil is not a Court for this 
pnipofie : Royal Aquarium Society y. 
Farkiruon, '92, 1 Q. B. 431, 61 L. J. 
Q. B. 409, G. A. 



(o) Dawkina y. ZordPaulet (1869) 
L. R. 6 Q. B. 94, 39 L. J. Q. B. 
63, see the dissenting judgment of 
Cookbum G. J., and the notes of 
Sir James Stephen, Dig. Gr. L. 
art. 276, and Mr. Blake Odgers, 
op, eit. 196. The reference of the 
Judicial Committee to the case in 
Sort y. Gumpaeh (1872) L. R. 4 
P. G. 439, 464, 42 L. J. P. G. 26, 
is quite neutral. They declined to 
presume that such an "ahsolute 
priyilege " existed bj the law and 
customs of China as to official 
reports to the Chinese Gh)yeniment, 



r2 



244 DEFAMATION. 

Qualified There is an important class of cases in which a middle 
^^uAn- course is taken between the common rule of unqualified 
^^^^ . responsibility for one's statements, and the exceptional 
oatioDB." rules which give, as we hare just seen, absolute protection 
to the kinds of statements covered by them. In many 
relations of life the law deems it politic and necessary to 
protect the honest expression of opinion concerning the 
character and merits of persons, to the extent appropriate 
to the nature of the occasion, but not necessary to prevent 
the person affected from showing, if he can, that an 
imfavourable opinion expressed concerning him is not 
honest. Occasions of this kind are said to be privileged, 
and communications made in pursuance of the duty or 
right incident to them are said to be privileged by the 
occasion. The term '^ qualified privilege " is often used to 
mark the requirement of good faith in such cases, in con- 
trast to the cases of ^' absolute privilege " above mentioned. 
Fair reports of judicial and parliamentaiy proceedings are 
put by the latest authorities in the same category. Such 
reports must be fair and substantially correct in fact to 
begin with, and also must not be published from motives 
of personal ill-will ; and this although the matter reported 
was '* absolutely privileged " as to the original utterance 
of it. 

Conditioiui The conditions of immunity may be thus summed up :— 
priTikge. The occasion must be privileged ; and if the defendant 
establishes this, he will not be liable unless the plaintiff can 
prove (jp) that the communication was not honestly made 
for the purpose of discharging a legal, moral or social 
duty, or with a view to the just protection of some private 

{p) The burden of proof la not 0. 73, 60 L. J. P. 0. 11^ J. O. 
on the defendant to show hiB good This, howeyer, ia or ought to be 
faith : Jmoure r. Dtknege^ '91, A. elementaiy. 



PRIVILEGED COMMUNICATIONS. 245 

interest or of the publio good by giving information 
appearing proper to be given, but from some improper 
motive and without due regard to truth. 

Such proof may consist either in external evidence of 
personal ill-feeling or disregard of the truth of the matter, 
or in the manner or terms of the communication, or acts 
accompanying and giving point to it, being unreasonable 
and improper, ^^ in excess of the occasion,^' as we say. 

The rule formerly was, and still sometimes is, expressed << Express 
in an artificial manner derived from the style of pleading 
at common law. 

The law, it is said, presumes or implies malice in all 
cases of defamatory words; this presumption may be 
rebutted by showing that the words were uttered on a 
privileged occasion ; but after this the plaintiff may allege 
and prove express or actual medice, that is, wrong motive. 
He need not prove malice in the first instance, because the 
law presumes it ; when the presumption is removed, the 
field is still open to proof. But the " malice in law " which 
was said to be presumed is not the same as the '' express 
malice" which is matter of proof. To have a lawful 
occasion and abuse it may be as bad as doing harm with- 
out any lawful occasion, or worse ; but it is a diflPerent 
thing in substance. It is better to say that where there is 
a duty, though of imperfect obligation, or a right, though 
not answering to any legal duty, to communicate matter 
of a certain kind, a person acting on that occasion in 
discharge of the duty or exercise of the right incurs no 
liability, and the burden of proof is on those who allege 
that he was not so acting (q). 

(f) See per Lord Blaokbum, 7 App. Oa. 787. 



246 DEFAMATION. 

Wliat aze The occasions giving rise to privileged communications 
S^^[]^i^[|^ may be in matters of legal or social duty, as where a con* 
fidential report is made to an official superior, or in the 
common case of giving a character to a servant ; or the 
communications may be in the way of self-defence, or the 
defence of an interest common to those between whom the 
words or writing pass ; or they may be addressed to persons 
in public authority with a view to the ezerciBe of their 
authority for the public good ; they may also be matter 
published in the ordinary sense of the word for purposes 
of general information. 

Moral or As to occasions of private duty; the result of the 

hooiaI 

duty. authorities appears to be that any state of facts making it 
right in the interests of society for one person to commu- 
nicate to another what he believes or has heard regarding 
any person's conduct or character will constitute a privi- 
leged occasion (r). 

Answers to confidential inquiries, or to any inquiries 
made in the course of affairs for a reasonable purpose, ore 
clearly privileged. So are communications made by a 
person to one to whom it is his especial duty to give 
information by virtue of a standing relation between 
them, as by a solicitor to his client about the soundness of 
a security, by a father to his daughter of full age about 
the character and standing of a suitor, and the like. 
Statements made without request and apart from any 
special relation of confidence may or may not be privileged 
according to the circumstances ; but it cannot be prudently 
assumed that they will be («). The nature of the interest 

(r) See per Blaokbnm J. in («) Cases of this kind haye been 
Daviet y. Snead (1870) L. R. 5 Q. B. yery troublesome. See Blake 
at p. 611. Odgers 217-21. 



PEIVILEGED COMMUNICATIONS. 247 

for the sake of which the oommunication is made (as 
whether it he puhlio or private, whether it is one touching 
the preservation of life, honour, or morals, or only matters 
of ordinary husiness), the apparent importance and urgency 
of the occasion, and other such points of discretion for 
which no general rule can he laid down, will all have their 
weight ; how far any of them will outweigh the general 
presumption against officious interference must always be 
more or less doubtful {t). 

Examples of privileged communications in self-protec-| Self-pro- 
tion, or the protection of a common interest, are a warning 
given by a master to his servants not to associate with a 
former fellow-servant whom he has discharged on the! 
ground of dishonesty {u) ; a letter from a creditor of a/ 
firm in liquidation to another of the creditors, conveying, 
information and warning as to the conduct of a member or 
the debtor firm in its affairs (a;). The privilege of an| 
occasion of legitimate self-interest extends to a solicitor | 
writing as an interested party's solicitor in the ordinary < 
course of his duty (y). The holder of a public office, when 
an attack is publicly made on his official conduct, may ' 
defend himself with the like publicity (2). < 

Communications addressed in good faith to persons in a jnforma- 
public position for the purpose of giving them information p^^uo ' 
to be used for the redress of grievances, the punishment of er^o^ 

(0 See Coxhead y. Richards (x) Spitt y. MauU (1869) Ex. 

(1846) 2 C. B. 669, 15 L. J. 0. P. Ch. L. B. 4 Ex. 232, 38 L. J. Ex. 

278, where the Court was equally 138. 

diyided, rather as to the reason- {y) Baker y. Oarriek, '94, 1 Q. B. 

ablj apparent urgencj of the par- 838, 9 B. Apr. 212, C. A. 

ticnlar ocoasion than on anj de- (z) Lauffhton y. Bishop of Sodor 

finable principle. attd Man (1872) L. B. 4 P. C. 495, 

(») SomerviUe Y. Hawkins (1850) 42 L. J. P. C. 11. 
10 C. B. 583, 20 L. J. C. P. 133. 



248 



DEFAMATION. 



crime, or the security of public morals, are in like maimer 
privileged, proyided the subject-matter is within the com- 
petence of the person addressed {a). The communication 
to an incimibent of reports affecting the character of Ids 
curate is privileged, at all events if made by a neighbour 
or parishioner ; so are consultations between the clergy of 
the immediate neighbourhood arising out of the same 
matter (ft). 



Fair 

reports. 



Fair reports (as distinguished from comment) are a 
distinct class of publications enjoying the protection of 
"qualified privilege " to the extent to be mentioned. The 
fact that imputations have been made on a privileged 
occasion will, of course, not exempt from liability a person 
who repeats them on an occasion not privileged. Even if 
the original statement be made with circimistances of 
publicity, and be of the kind known as " absolutely privi- 
leged," it cannot be stated as a general rule that republi- 
cation is justifiable. Certain specific immunities have been 
ordained by modem decisions and statutes. They rest on 
particular grounds, and are not to be extended (r). Matter 



(a) Marritm r, Buth (1865) 5 
E. & B. 344, 26 L. J. Q. B. 26. 
Mere belief that the person od- 
dreesed is oifieiallj competent will 
not do: Hebditeh t. MaeBtcainey '94, 
2 Q. B. 54, 9 B. July, 204, 0. A. 
In Earriton t. Btuhf however it was 
held that it was not, in fact, ir- 
regnlar to address a memorial 
complaining of the conduct of a 
justice o# the peace to a Secretary 
of State (see the judgment of the 
Court as to the incidents of that 
office), though it would be more 
usual to address such a memorial to 
the Lord OhanoeUor. Complainta 



made to the Priyy Council against 
an officer whom the Council is by 
statute empowered to remoTc are in 
this category ; the absolute privi- 
lege of judicial proceeding's cannot 
be claimed for them, though the 
power in question may be exer- 
oiseable only on inquiry : Ftoetor-y. 
Webiter (1885) 16 Q. B. D. 112, &5 
L. J. Q. B. 160. 

ib) Clark y. MoJyneux (1877) 3 
Q. B. Div. 237, 47 L. J. Q. B. 230. 

(e) See DavU v. Shepttone (1886) 
J. C. 11 App. Ca. 187, 66 L. J. 
P. 0. 61. 



FAIR REPORTS. 



249 



not coming under any of them must stand on its own 
merits, if it can, as a fair comment on a subject of public 
interest. 

By statute (3 & 4 Vici c. 9, a.d. 1840) the publication Parlia- 
of any reports, papers, votes, or proceedings of either MpmT 
House of Parliament by the order or under the autho- 
rity of that House is absolutely protected, and so is the 
republication in full. Extracts and abstracts are protected 
if in the opinion of the jury they were published bona fide 
and without malice {d). 

Fair reports of parliamentary and public judicial pro- Parlia- 
ceedings are treated as privileged communications. It has debateZ 
long been settled {e) that fair and substantially accurate ^ ^^S 
reports of proceedings in courts of justice are on this foot- ceedings. 
ing. As late as 1868 it was decided (/) that the same 
measure of immunity extends to reports of parliamentary 
debates, notwithstanding that proceedings in Parliament 
are technically not publie, and, still later, that it extends 
to fair reports of the quasi-judicial proceedings of a body 
established for public purposes, and invested with quasi- 
judicial authority for effecting those purposes (^). In 
the case of judicial proceedings it is immaterial whether 
they are preliminary or final (provided that they are such 



(i] See Blake Odgen, op. eit, 
185-6. The words of the Act, in 
their literal constmotioii, appear 
to throw the burden of proving 
good faith on the pnbliBher, which 
probably was not intended. 

(e) Per Our. in Waaon v. Walter, 
L. B. 4 Q. B. at p. 87. 

(/) JFason v. Tralter, L. R. 4 
Q. B. 73, 38 L. J. Q. B. 84. And 
editorial oomments on a debate 



published bj the same newspaper 
which publishes the report are 
entitled to the benefit of the 
general rule as to fair comment on 
public affairs: ib. Op. the Ger- 
man Federal Constitution, arts. 
22, 30. 

(y) AUbutt y. General Council of 
Medical Education (1889) 23 Q. B. 
Div. 400, 68 L. J. Q. B. 606. 



250 



DEFAMATION. 



as will lead to some final decision) (A) and whether contested 
or ex paHe {h)y and also whether the Court actually has 
jurisdiction or not, provided that it is acting in an appa« 
rentlj regular manner (i). The report need not be a 
report of the whole proceedings, provided it gives a fair 
and substantially complete account of the case : but 
whether it does give such an account has been thought 
to be a pure question of fact, even if the part which is 
separately reported be a judgment purporting to state 
the facts (A). The report must not in any case be partial 
to the extent of misrepresenting the judgment (/). It 
may be libellous to publish even a correct extract from 
a register of judgments in such a way as to suggest that a 
judgment is outstanding when it is in fact satisfied (m) ; 
but a correct copy of a document open to the public is not 
libellous without some such further defamatory addition (n) . 
By statute '^ a fair and accurate report in any newspaper 
of proceedings publicly heard before any court exercising 
judicial authority " is, ^' if published contemporaneously 
with such proceedings," privileged : which seems to mean 
absolutely privileged, as otherwise the statute would not 



(A) Kimher t. Fnu A$tociation, 
'93, 1 Q. B. 66, 62 L. J. Q. B. 162, 
4 B. 96, G. A. 

(i) mm V. KaUi (1878) 8 0. P. 
D. 319, 47 L. J. 0. P. 828, where 
the prooeeding reported was an 
application to a police magistrate, 
who, after hearing the facts stated, 
declined to act on the ground of 
want ol jurisdiction : LewU y . Levy 
(1868) E. B. Ss E. 637, 27 L. J. 
Q. B. 282. 

{k) MaedougtOl y. Knight (1889) 
14 App. Ca. 194, 68 L. J. Q. B. 
637. But in MaedougaU v. Knight 
(1890) 26 Q. B. Diy. 1, 69 L. J. 



Q. B. 617, the G. A. adhered to 
their previous yiew (17 Q. B. Div. 
636, action between same parties) 
that a correct report of a judgment 
is privileged. 

(/) Hagward ^ Co, y. Hayward 
^ Son (1886) 34 Gh. D. 198, 66 L. J. 
Gh. 287. 

(m) JTiUiamt y. Smith (1888) 22 
Q. B. D. 134, 68 L. J. Q. B. 21. 

(ft) Searlet y. SearUtt^ '92, 2 Q. 
B. 66, 61 L. J. Q. B. 673, G. A., 
where the publication was expressly 
grtuurded: qu, as to Williama y. 
Smith, see '92, 2 Q. B. at pp. 62, 
63, 64. 



VOLUNTEERED BEPOETS. 



251 



add to the protection already given by tlie common law (o). 
The rule does not extend to justify the reproduction of 
matter in itself obscene, or otherwise unfit for general 
publication (j>)j or of proceedings of which the publication 
is forbidden by the Court in which they took place. The 
burden of proof is on the defendant to show that the report 
is fair and accurate. But if it really is so, the plaintiff's 
own eyidence will often prove that the facts happened as 
reported (y). 



An ordinary newspaper report furnished by a regula|Vol^. 
reporter is all but conclusively presumed, if in fact f aiJ r^rta. 
and substantially correct, to have been published in gooa 
faith ; but an outsider who sends to a public print even ( 
fair report of judicial proceedings containing personal im 
putations invites the question whether he sent it honestly 
for purposes of information, or from a motive of personal 
hostility ; if the latter is found to be the fact, he is liablq 
to an action (r). 

Newspaper reports of public meetings and of meetings 
of vestries, town councils, and other local authorities, and 
of their committees, of royal or parliamentary commissions, 
and of select committees, are privileged under the Law of 
libel Amendment Act, 1888 (g). A public meeting is for 
this purpose ^* any meeting bona fide and lawfully held for 
a lawful purpose, and for the furtherance or discussion 



(o) 51 & 62 Vict. 0. 64, s. 3. 
The earlier cases are stUl material 
to show what is a fair and aocurate 
report. 

(p) Steele Y. Brannan (1872) L. B. 
7 C. P. 261 (a criminal case) ; 51 & 
52 Vict. c. 64, s. 3. 

{q) Kimher y. Frett Aasoeiation, 
»93, 1 Q. B. 66, 62 L. J. Q. B. 
152, 4 B. 95, 0. A. 



(r) Stevens v. Sampttm (1879) 5 
Ex. Biv. 53, 49 L. J. Q. B. 120. 

(«) 61 & 52 Yiot. 0. 64, s. 4. 
The iU-drawn enactment of 1881 
for the same poipose, 44 & 46 Vict. 
0. 61, s. 2, is repealed bj sect. 2 of 
this Act. As to boards of guar- 
dians, see Fittard v, Oliver ^ *91, 1 
Q. B. 474, 60 L. J. Q. B. 219, 
0. A. 



252 



DEFAMATION. 



of any matter of publio oonoem, whether the admission 
thereto be general or restrioted." The defendant must not 

(have refused on request to insert in the same newspaper 
a reasonable contradiction or explanation. Moreover " the 
publication of any matter not of publio concern, and the 
publication of which is not for the public benefit," is not 
protected (Q. 



Exce§8of 
privilege. 



In the case of privileged communications of a confi- 
dential kind, the failure to use ordinary means of ensuring 
privacy — as if the matter is sent on a post-card instead of 
in a sealed letter, or telegraphed without evident necessity 
— ^will destroy the privilege ; either as evidence of medice, 
or because it constitutes a publication to persons in respect 
of whom there was not any privilege at all. The latter 
view seems on principle the better one {u). But the privi- 
lege of a person making a statement as matter of public 
duty at a meeting of a public body is not affected by 
unprivileged persons being present who are not there at 
his individual request or desire, or in any way under his 
individual control, though they may not have any strict 
right to be there, newspaper reporters for example (;r). It 
is now decided that if a communication intended to be 
made on a privileged occasion is by the sender's ignorance 
(as by making it to persons whom he thinks to have some 
duty or interest in the matter, but who have none), or 
mere negligence (as by putting letters in wrong envelopes) 



(0 61 & 52 Viot. 0. 64, 8. 4. 
In a civil action on whom ie the 
burden of proof as to thiaP See 
Blake Odgera 881-3, on the re- 
pealed section of 1881, where how- 
ever this qualification was by waj 
of condition and not bj way of 



proviso. 

(m) Williamion y. Freer (1874) 
L. B. 9 C. P. 893, 43 L. J. C. P. 
161. 

(«) Pittard v. Oliver, '91, 1 Q. B. 
474, 60 L. J. Q. B. 219, C. A. 



EXCESS OF PBIYILEGE. 



253 



detiyered to a person who is a stranger to that ocoasLon, the 
sender has not any benefit of privilege (y). 



Where the existence of a privileged occasion is estab- 
lished, we have seen that the plaintifE must give affirmative 
proof of maUce, that is, dishonest or reckless ill-will (s), in 
order to succeed. It is not for the defendant to prove 
that his belief was founded on reasonable grounds, and 
there is no difference in this respect between different 
kinds of privileged communication (a). To constitute 
malice there must be something more than the absence of 
reasonable ground for belief in the matter commimicated. 
That may be evidence of reckless disregard of truth, but is 
not always even such evidence. A man may be honest 
and yet unreasonably credulous ; or it may be proper for 
him to communicate reports or suspicions which he himself 
does not believe. In either case he is within the protec- 
tion of the rule (b). It has been found difficult to impress 
this distinction upon juries, and the involved language of 
the authorities about 'implied" and '^ express" malice ha^, 
no doubt, added to the difficulty. The result is that the 
power of the Court to withhold a c£tse from the jury on 
the ground of a total want of evidence has on this point 
been carried very iax{c). In theory, however, the rela- 



MODOSt 

belief is 
not neces- 
Barilj 
reasonable 
belief. 



(y) SMUeh y. Macllwaine, '94, 
2 Q. B. 54, 9 B. Jnlj, 204, G. A. 

(z) A statement made redklesslj 
imder the inflaenoe of e.y. gross 
prejudice against the plaintiff's 
Oooupation in general, though with* 
out any personal hostility towards 
him, maj be malicious : Sojfol 
Aquarium Society y. Farkintmy '92, 
1 Q. B. 431, 61 L. J. Q. B. 409, 
0. A. 

(a) Jmowr$ y. Ihhne^e, '91, A. 



0. 78, 60 L. J. P. 0. 11 (J. 0.). 

(b) Clark y. Molt/neux (1877) 3 
Q. B. Diy. 237, 47 L. J. Q. B. 
230, per Bramwell L. J. at p. 244 ; 
per Brett L. J. at pp. 247-8 ; per 
Ck>tton L. J. at p. 249. 

{e) LaugJUon y. Bishop of Sodor 
and Man (1872) L. B. 4 P. C. 496, 
42 L. J. P. 0. 11, and authorities 
there cited ; 8piU y. Maule (1869) 
Ex. Gh. L. B. 4 Ex. 232, 88 L. J. 
Ex. 188. 



254 



DEFAMATION. 



Power of 
jury in 
assessing 
damagefl. 



tion of the Court to the jury is the Bame as In other ques- 
tions of '^ mixed fact and law." Similar difficulties have 
been felt in the law of Negligence, as we shall see under 
that head. 

In assessing damages the jury ^^ are entitled to look at 
the whole conduct of the defendant from the time the 
libel was published down to the time they gave their ver- 
dict. They may consider what his conduct has been 
before action, after action, and in Court during the trial.'' 
And the verdict will not be set aside on the ground of the 
damages being excessive, unless the Court thinks the 
amount such as no twelve men could reasonably have 
given (d). 



Special 
prooedore 
in ^' 



Lord Campbell's Act 




contains 



actions I Special provisions as to provmg the oner of an apology m 
for news- j loitigation of damages in actions for defamation, and pay- 
beis. I ment into court together with apology in actions for libel 
in a public print {$), 



Umits of f Where money has been paid into court in an action for 
torieTin*'! ^^^^j ^^^ plaintiff IS uot entitied to interrogate the de- 
action for I f endant as to the sources of his information or the means 

libel. I 

I used to verify it (/). 

A plaintiff's general bad repute cannot be pleaded as 
part of the defence to an action for defamation, for it is 
ot directiy material to the issue, but can be proved only 
mitigation of damages (g). 



Bad repu- 
tation of 
plaintiff. 




(d) Frasd t. Graham (1889) 24 
Q. B. Diy. 63, 56, 69* L. J. Q. B. 
230. 

(e) The Bules of Oonrt ol 1876 
had the effect of enlarging and so 
far saperseding the latter provi- 
sion ; but see now Order XXII. 



r. 1, and ** The Annual Praotioe " 
thereon. See alao 61 Ss 62 Viet. 
0. 64, 8. 6. 

(/) Pam$a y. JFalter (1890) 24 
Q. B. D. 441, 69 L. J. Q. B. 126. 

(y) Wood Y. Durham (1888) 21 
Q. B. D. 601, 67 L. J. Q. B. 647. 



INJUNCTIONS. 256 

We have abeady seen (A) that an injunction may be Injtmo- 
granted to restrain the publication of defamatory matter, 
but, on an interlocutory application, only in a clear case (A), 
and not where the libel complained of is on the face of it 
too gross and absurd to do the plaintiff any material 
harm {%). Gases of this last kind may be more fitly dealt 
with by criminal proceedings. 

{h) Bonnard r. Fenyman, '91, y. MartkaU, '92, 1 Oh. 671, 61 

2 Gh. 269, 60 L. J. Ch. 617, 0. A. L. J. Ch. 268. 
p. 179, above ; for a later example (0 Salonumsy. Xhight, '91, 2 Gh. 

of injunction granted, see OoUard 294, 60 L. J. Ch. 743, 0. A. 



256 



CHAPTEE Vin. 



WRONGS OP FRAUD AND MALICE. 



Katote 
of the 
wrong. 



Cononr- 
rent juris- 
diction of 
oommon 
law and 
equity. 



I. — Deceit 

In the foregoing chapters we dealt with wrongs affecting 
the so-called primary rights to security for a man's person, 
to the enjoyment of the society and obedience of his 
family, and to his reputation and good name. In these 
cases, exceptional conditions ezpepted, the knowledge or 
state of mind of the person violating the right is not 
material for determining his legal responsibility. This is 
so even in the law of defamation, as we have just seen, 
the artificial use of the wyrd '^ medice " notwithstanding. 
We now come to a kind of wrongs in which either a 
positive wrongful intention, or such ignorance or indiffer- 
ence as amounts to guilty recklessness (in Boman terms 
either dolus or ctdpa lata) is a necessary element ; so that 
liability is founded not in an absolute right of the plaintiffi 
but in the unrighteousness of the defendant. 

The wrong called Deceit consists in leadi ng a m an into 
damage by w ilful ly or recklessly causing him to believe 
and act on a f a lsehood . It is a cause of action by the 
common law (the action being an action on the case 
foimded on the ancient writ of deceit (a), which had a 
much narrower scope) : and it has likewise been dealt with 
by courts of equity under the general jurisdiction of 

(a) F. N. B. 96 E. $qq. 



DECEIT, 257 

the Chancery in matters of fraud. The principles worked 
out in the two jurisdictions are believed to be identical (J), 
though there may be a theoretical difference as to the 
character of the remedy, which in the Court of Chancery 
did not purport to be damages but restitution {c). Since 
1875, therefore, we have in this case a real and perfect 
fusion of rules of common law and equity which formerly 
were distinct, though parallel and similar. 

The subject has been one of considerable difficulty for Diffiool- 

1 ties of the 

several reasons. Bubjeot : 

First, the law of tort is here much complicated with the ^ ™^^J5^ 
law of contract. A false statement may be the induce- contract, 
ment to a contract, or may be part of a contract, and in 
these capacities may give rise to a claim for the rescission 
of the contract obtained by its means, or for compensation 
for breach of the contract or of a collateral warranty. A 
false statement unconnected with any contract may like- 
wise create, by way of estoppel, an obligation analogous to 
contract. And a statement capable of being regarded in 
one or more of these ways may at the same time afford a 
cause of action in tort for deceit. '^ If, when a man thinks 
it highly probable that a thing exists, he chooses to say he 
knows the thing exists, that is really asserting what is 
false : it is positive fraud. That has been repeatedly laid 
down. ... If you choose to say, and say without inquiry, 
* I warrant that,' that is a contract. If you say, ' I know 
it,' and if you say that in order to save the trouble of 
inquiry, that is a false representation — you are saying 
what is false to induce them to act upon it " (d). 

The grounds and results of these forms of liability are 

(b) See per Lord Chelmsford, {d) Lord Blaokbum, Brownlie t. 

L. B. 6 H. L. at p. 390. Campbell (1880) 6 App. Ca. (Sc.) at 

(e) See pp. 179, 180, aboye. p. 963. 

P. 8 



258 WRONGS OP JRAUB AND MALICE. 

largely Bimilar, but oannot be assumed to be identical. 
The authorities establishing what is a cause of action for 
deceit are to a large e3d»nt convertible with those which 
define the right to rescind a contract for fraud or mis- 
representation, and the two classes of cases used to be 
cited without anj express discrimination. We shall see 
however that discrimination is needful. 

ChiestioiiB Secondly, there are difficulties as to the amount of actual 
dulAiit fraudulent intention that must be proved against a defen- 
dant. A man may be, to all practical intents, deceived 
and led into loss by relying on words or conduct of 
another which did not proceed from any set purpose to 
deceive, but perhaps from an imf ounded expectation that 
what he stated or suggested would be justified by the 
event. In such a case it seems hard that the party misled 
should not have a remedy, and yet there is something 
harsh in saying that the other is guilty of fraud or deceit. 
An over-sanguine and careless man may do as much harm 
as a deliberately fraudulent one, but. the moral blame is 
not equal. Again, the jurisdiction of courts of equity in 
these matters has always been said to be founded on 
fraud. Equity judges, therefore, were unable to frame a 
terminology which should clearly distinguish fraud from 
culpable misrepresentation not amounting to fraud, but 
having similar ooiiBequences in law: and on the contrary 
they were driven, in order to maintain and extend a 
righteous and beneficial jurisdiction, to such vague and 
confusing phrases as "constructive fraud," or "conduct 
fraudulent in the eyes of this Court." Thus they obtained 
in a cumbrous fashion the results of the bolder Boman 
maxim culpa lata dolo aequiparatur. The results were 
good, but, being so obtained, entailed the cost of much 
laxity in terms and some laxity of thought. Of late years 



DECEIT. 259 

there has been a reaction againet this habit, wholesome 
in the main, but not free from some danger of excess. 
" Legal fraud " is an objectionable term, but it does not 
follow that it has no real meaning (e). One might as 
well say that the '^ common counts " for money had and 
received, and the like, whidii before the Judicature Acts 
were annexed to most declarations in contract, disclosed no 
real cause of action, because the '* contract implied in law " 
which they supposed was not founded on any actual 
request or promise. 

Thirdly, special difficulties of the same kind have arisen Frand of 
with regard to false statements made by an agent in the ^^^ 
course of his business and for his principal's purposes, but 
without express authority to make such statements. Under 
these conditions it has been thought harsh to hold the 
principal answerable ; and there is a farther aggravation 
of difficulty in that class of cases (perhaps the most im- 
portant) where the principal is a corporation, for a corpo- 
ration has been supposed not to be capable of a fraudulent 
intention. We have already touched on this point (/) ; 
and the other difficulties appear to have been surmounted, 
or to be in the way of being surmounted, by our modem 
Authorities. 



Having indicated the kind of problems to be met with. General 
we proceed to the substance of the law. S^e* 

To cr eate a riffht of action for deceit there must be a "??* °' 
statement made by the defendant, or for which he is 

{f) See per Lord Bramwell, Wtir sated in VMl r. Athtrtwn (1861) 7 

.T. BMy 3 £x. D. at p. 243 ; Btrry H. & N. 172, 30 L. J. £z. 337» 

.▼. Teek, 14 App. Ga. at p. 346. -where the Oonrt was equally 

(/) Pp. 78, 79, aboye. Thediffi- divided. 
cultieB may be said to haye oulmi- 

S2 



260 



WRONGS OP FRAUD AND MALICE. 



^ 



apflwerabl ft <>f ppnfijpfil^ aTirl wj^ h reyard to that statement 
all tlie foUowinir conditions must concur : 

(a) It is untrue in fact. 

(b) The person maldng the statement, or the person 

responsible for it, either knows it to be untrue, 
or is culpably ignorant (that is, recklessly and 
consciously ignorant) {g) whether it be true 
or not. 

(c) It is made to the intent that the pliuntifi shall act 

upon it, or in a manner apparently fitted ta 
induce him to act upon it (A). 

(d) The plaintiff does act in reliance on the statement 

in the manner contemplated or manifestly proV 

able, and thereby suffers damage (t). 

There is no cause of action without both fraud (/) and 

actual damage7or tKe damage is the gist of the action (ifc). 

And according to the general principles of civil liability, 

the damage must be the natural and probable consequence 

of the plaintiff's action on the faith of the defendant's 

statement. 

(e) ^e statement must be in writing and signed in 
one class of cases, namely, where it amounts to a 
guaranty : but this requirement is statutory, and 
as it did not apply to the Court of Chancery, 

does not seem to apply to the High Court of 
Justice in its equitable jurisdiction. 

(g) Lord Henohell, Btrry r. 
FMik (1889) H App. Oa. at p. 371. 

(A) See 2M\a r. WiOter (1882) 
8 B. & Ad. 114, 128. 

(i) Gp. for the general roles 
Lord Hatherley (Page Wood 
V.-C), Barry y. Orosk^ (1861) 2 
J. ft H. at pp. 22-8, approved bj 
Lord CaimB in F^tk t. Gum0ffy 
L. B. 6 H. L. at p. 418 ; Bowen 



L. J., EdgingUm t. 
(1886) 29 Gh. Dir. at pp. 481-2; 
and Lindley L. J., Smith t. Chad* 
wiek (1882) 20 Gh. Dir. at p. 76. 

(/) Dmyy. Feek (1889) 14 App. 
Ga. 837, 374, 68 L. J. Gh. 864. 

{k) Lord Blaokbnm, Smith t. 
Chadwiek (1884) 9 App. Ga. at p. 
196. 



DECEIT. 



261 



Of these heads in order. 

(a) A statement can be untrue in fact only if it purports Falsehood 
to state matter of f aot. A promise is distinct from a state- 
ment of fact, and breach of contract, whether from want of 
power or of will to perform one's promise, is a different 
thing from deceit. Again a mere statement of opinion or 
inference, the facts on which it purports to be founded 
being notorious or equally known to both parties, is 
different from a statement importing that certain matters 
of fact are within the particular knowledge of the speaker. 
A man cannot hold me to account because he has lost 
money by following me in an opinion which turned out to 
be erroneous. In particular cases, however, it may be hard 
to draw the line between a mere expression of opinion and 
an assertion of specific fact (/). And a man's intention or 
purpose at a given time is in itself a matter of fact, and 
capable (though the proof be seldom easy) of being found 
as a fact. ** The state of a man's mind is as much a fact 
as the state of his digestion" (m). It is settled that the 
vendor of goods can rescind the contract on the ground of 
fraud if he discovers within due time that the buyer 
intended not to pay the price (w). 

When a prospectus is issued to shareholders in a com-* 
pany or the like to invite subscriptions to a loan, a state- 
ment of the purposes for which the money is wanted — in 



(Q Compare Fasley t. Fremnan 
(17S9), 8 T. B. 51, 1 B. B. 634, 
with Eayeraft v. Creaty (1801) 2 
East 92, 6 B. B. 380, where Lord 
Eenyon's diesentmg judgment may 
be more acceptable to the latter-day 
reader than those of the majority. 

(m) Bowen L. J. , 29 Ch. Diy . 483. 

(«) Clough V. X. and N. W. M. 
Co, (1871) Ex. Ch. L. B. 7 Ex. 26, 
41 L. J. Ex. 17 ; cp. per Mellish 



L. J., Ex parte WhUtaker (1876) 
10 Ch. at p. 449. Whether in such 
oaee an action of deceit would lie is 
a merely speculative questioii, as if 
rescission is impracticable, and if 
the fraudulent buyer is worth 
suing, the obviously better course 
is to sue on the contract for the 
price. See however JFiUiamson y. 
Allison (1802) 2 East 446. 



262 



WBONOS OF fBAUD AND MALICE. 



flentations 
of law. 



other words, of the borrower's mtention as to its applioa- 
tion — is a material statement of fact, and if untrue may be 
ground for an action of deceit (;»). The same principle 
would seem to apply to a man's statement of the reasons 
for his conduct, if intended or calculated to influence the 
conduct of those with whom he is dealing (o) ; as if an 
agent employed to buy falsely names, not merely as the 
highest price he is willing to give, but as the actual limit 
of his authority, a sum lower than that which he is really 
empowered to deal for. 

A representation concerning a man's private rights, 
though it may involve matters of law, is as a whole 
deemed to be a statement of fact. Where officers of a 
company incorporated by a private Act of Parliament 
accept a bill in the name of the company, this is a repre- 
sentation that they have power so to do under the Act of 
Parliament, and the existence or non-existence of such 
power is a matter of fact. " Suppose I were to say I have 
a private Act of Parliament which gives me power to do 
so and so. Is not that an assertion that I have such an 
Act of Parliament P It appears to me to be as much a 
representation of a matter of fact as if I had said I have a 
particular bound copy of Johnson's Dictionary" {p). A 
statement about the existence or actual text of a pubUo Act 
of Parliament, or a reported decision, would seem to be no 
less a statement of fact. With regard to statements of 



(») Edffingtonr.^izmaurie^ {ISSi) 
» eb., DiT. 469, 66 L. J. Ch. 660. 

(o) It U sabmitted that the con- 
trary opinion given in Ventan t. 
Key$ (1810) Ex. Gh. 4 Tknnt. 488, 
11 B. B. 499, can no longer be 
considered law : see 11 B. B. Pre- 
face, Ti. and Mr. Camphell's note 
at p. 606. 



(/>) JTett London Oommsreial Bank 
T. Kitaon (1884) 13 Q. B. Dir. 360, 
per Bowen L.J. at p. 863, 63 L. J. 
Q. B. 346. Gp. FirhankU Bxoeuton 
T. Sumphrey9 (1886) 18 Q. B. Dir. 
64, 66 L. J. Q. B. 67 (directors' 
assertion of subsisting authority to 
issue debentures) . 



WHAT IS DECEIT. 



263 



matters of general law made only by implioation, or state- 
ments of pure propositions of the law, the rule may perhaps 
be this, that in dealings between parties who have equal 
means of ascertaining the law, the one will not be pre- 
sumed to rely upon a statement of matter of law made by 
the other {q). It has never been decided whether proof of 
suoh reUanoe is admissible ; it is submitted that if the case 
arose it could be received, though with caution. Of course 
a man will not in any event be liable to an action of deceit 
for misleading another by a statement of law, however 
erroneous, which at the time he really believed to be correct. 
That case would fall into the general category of honest 
though mistaken expressions of opinion. If there be any 
ground of liability, it is not fraud but negligence, and it 
must be shown that the duty of giving competent advice 
had been assumed or accepted. 

It remains to be noted that a statement of which every Falaeliood 
port is literally true may be false as a whole, if by reason ^^J 
of the omission of material facts it is as a whole calculated »*«^*»» 
to mislead a person ignorant of those facts into an infer- 
ence contrary to the truth (r). " A suppression of the truth 
may amount to a suggestion of falsehood " (s). 



(b) As totheknowledgeandbelief of the person making Know- 
the statement. {^? i ol 

He may believe it to be true (t). In that case he incurs defendant. 



(q) ThiB appears to be the real 
ground of EashdaU t. Ford (1866) 
2 £q. 750, 36 L. J. Gh. 769. 

(r) '* There miut, in my opinion, 
be some actiye miflstatement of 
fact, or at aU eyents sach a x>artial 
and fragmentary statement of fact 
as that the withholding of that 
whioh is not stated makes that 



which is stated absolutely false :*' 
Lord Cairns, L. B. 6 H. L. 403, 

(«) SUwaft T. Wtfomin^ kanehe 
Co. (1888) 128 IT. 8. 383, 888. 

(0 CoUitiB T. Evans (1844) Ex. 
Oh. 6 Q. B. 820, 13 L. J. Q. B. 
180. Ghxxl and probable reason 
as weU as good faith was pleaded 
and proved. 



264 WRONGS OF FRAUD AND MALICE. 

no Uability, nor is he bound to show that his belief was 
founded on suoh grounds as would produce the same belief 
in a prudent and oompetent man {u)f exoept so far as the 
absence of reasonable cause may tend to the inference that 
there was not any real belief. An honest though dull 
man cannot be held guilty of fraud any more than of 
^' express malice/' although there is a point beyond which 
oourts will not believe in honest stupidity. ^' If an untrue 
statement is made/' said Lord Chelmsford, ''founded 
upon a belief which is destitute of all reasonable grounds, 
or which the least inquiry would immediately correct, I do 
not see that it is not fairly and correctly characterized as 
misrepresentation and deceit " (x) ; Lord Cranworth pre- 
ferred to say that such circumstances might be strong 
evidence, but only evidence, that the statement was not 
really believed to be true, and any liability of the parties 
** would be the consequence not of their having stated as 
true what they had not reasonable ground to believe to be 
true, but of their having stated as true what they did not 
believe to be true" (y). Lord Cran worth's opinion has 
been declared by the House of Lords (2), reversing the 
judgment of the Court of Appeal (a), to be the correct one. 
^' The ground upon which an alleged belief was founded " 
is allowed to be '' a most important test of its reality " (b) ; 
but if it can be found as a fact that a belief was really and 
honestly held, whether on reasonable grounds or not, a 



(w) Tayhr y. Mhton (1843) 11 (x) Wntem Bank of SeoiUmd r. 

Iff. & W. 401, 12 L. J. Ex. 863, Addie (1867) L. R. 1 So. at p. 162. 

but the aotnal decision is not oon- (y) Ih. at p. 168. 

sistent irith the doctrine of the (z) Berry r. Peek (1889) 14 App. 

modem oases on the datj of Ga. 337, 68 L. J. Ch. 864. 

directors of companies. See per (a) Peek t. Derry (1887) 37 Ch. 

Lord Herschell, 14 App. Oa. at Diy. 641, 67 L. J. Ch. 347. 

p. 876. (b) Lord HersohcU, 14 App. Ca. 

at p. 876. 



WHAT IS DECEIT. 



265 



statement embodying that belief cannot render its maker 
liable in an action for deceit {c)y however grossly negligent 
it may be, and however mischievous in its results {d). 

I have given reasons elsewhere (e) for thinking this 
decision of the House of Lords an unfortunate one. It 
would be out of place to repeat those reasons here. But it 
may be pointed out that the reversed opinion of the Court 
of Appeal coincides with that which has for many years 
prevailed in the leading American Courts (/), and has 
lately been thus expressed in Massachusetts : — 

" It is well settled in this Commonwealth that the charge 
of fraudulent intent, in an action for deceit, may be main- 
tained by proof of a statement made, as of the party's own 
knowledge, which is false, provided the thing stated is not 
merely a matter of opinion, estimate, or judgment, but is 
susceptible of actual knowledge; and in such case it is 
not necessary to make any further proof of an actual intent 
to deceive. The fraud consists in stating that the party 
knows the thing to exist, when he does not know it to 
exist ; and if he does not know it to exist, he must ordi- 
narily be deemed to know that he does not " (g). 

And so, still more lately, the Supreme Court of the 
United States not only said that " a person who makes 
representations of material facts, assuming or intending to 
convey the impression that he has adequate knowledge of 
the existence of such facts, when he is conscious that he 



(e) Aee. Glasiery. Molls (1889) 42 
Ch. DiT. 436, 68 L. J. Ch. 820; 
Law T. Souveriey '91, 3 Ch. 82, 60 
L. J. Ch. 694, C. A. 

{d) Ze Lievre y. Gould, '93, 1 
Q. B. 491, 62 L. J. Q. B. 363, 4 
B. 274, C. A. (untrae certificate 
^egligentlj g^yen by a builder who 
owed no special duty to the plain- 
tiff). 



(e) L. Q. B. T. 410 ; for a dif- 
ferent yiew, see Sir William Anson, 
ib. Yi. 72. 

(/) Cooley on Torts, 601. The 
tendency appears as early as 1842, 
Stone y. Denny, 4 Met. (Mass.) 161, 
168. 

(ff) Chatham Furnace Co. y. 
Mofatt (1888) 147 Mass. 408. 



268 WBONGS OF FRAUD AND MALICE. 

has no sach knowledge," is answerable as if he actually 
knew them to be false — ^which is admitted eveiywhere — 
but went on to say that a vendor or lessor may be held 
guilty of deoeit by reason of material untrue representa- 
tions " in respeot to his own business or property, the truth 
of which representations the vendor or lessor is bound and 
must be presumed to know " (h). This appears to be pre- 
cisely the step which in this country the Court of Appeal 
was prepared, but the House of Lords refused, to take. 

In England, on the contrary, ** ne ^ li fi^ence. however 
great, ^does^not of itse l f co qstitutp ^ {t^d/* (») nor, it seems, 
even cast upon the defendant the burden of proving actual 
belief in the truth of the matter stated (t). Even the 
grossest carelessness, in the absence of contract, will not 
make a man liable for a false statement without a specific 
finding of fact that he knew the statement to be false or 
was recklessly ignorant whether it was true or false {k). 

Perhaps it would have been better on principle to hold 
the duty in these cases to be quasi ex contractu^ and evade 
the barren controversy about ^4egal fraud.'' One who 
makes a statement as of fact to another, intending him to 
act thereon, might well be held to request him to act upon 
it ; and it might also have been held to be an implied 
term or warranty in every such request that the party 
making it has some recu9onable ground for believing what 
he affirms ; not necessarily sufficient ground, but such as 
might then and there have seemed sufficient to a man of 
ordinary understanding. This would not have been more 
artificial than holding, as the Exchequer Chamber was 
once prepared to hold, that the highest bona fide bidder at 

(h) Lehigh Zinc and Iron Co, v. (h) See judgments of Lindley 

Bamford (1893) 150 XT. S. 666, 673. and Bowen L.JJ., in Angut t. 

(i) '98, 1 Q. B. at p. 496, per Clifford, '91, 2 Gh. 449. 
LordEeher. 



WHAT IS DECEIT. - 267 

an auction^ advertised to be without reserve, can sue the 
auctioneer as on a contract that the sale is really without 
reserve, or that he has authority to sell without reserve (/). 

And such a development would have been quite parallel 
to others which have taken place in the modem history of 
the law. No one now regards an express warranty on a 
sale otherwise than as a matter of contract ; yet until the 
latter part of the eighteenth century the common practice- 
was to declare on such warranties in tort (m) . But it seems 
now too late, at all events in this country, to follow such 
a line of speculation. 

It has been suggested that it would be highly incon- 
venient to admit '' inquiry into the reasonableness of a 
belief admitted to be honestly entertained " (n). I cannot 
see that the inquiry is more difficult or inconvenient than 
that which constantly taJkes place in questions of negli- 
gence, or that it is so difficult as those which are necessary 
in cases of malicious prosecution and abuse of privileged 
oommimications. Besides, we do not admit beliefs to be 
honest first and ask whether they were reasonable after- 
wards. 

If, having honestly made a representation, a man dis- RepTesen- 
eovers that it is not true before the other party has acted snbse- 
upon it, what is his position P It seems on principle that, J^yJed 
as the offer of a contract is deemed to continue till revoca- to ^« 

iintru6« 

tion or acceptance, here the representation must be taken to 
be continuously made until it is acted upon, so that from 
the moment the party making it discovers that it is false 

(Q JFarlotor. Marriton (1869) 1 ginaUy an action on the oaae for 

E. & E. 309, 29 L. J. Q. B. 14. deceit in brealdng a promise to the 

(m) TFUliamson ▼. Allison (1802) promisee's damage : J. B. Ames in 

- 2 East 446, 451. We need not Harvard Law Bev. ii. 1, 53. 

remind the learned reader that the (») Sir W. Anson, L. Q. B. vi. 

action of assumpsit itself vas ori- 74« 



268 



WRONGS OF FRAUD AND MALICE. 



and, having the means of oommunioating the truth to the 
other party, omits to do so, he is in point of law making a 
false representation with knowledge of its untruth. And 
such has been declared to be the rule of the Court of 
Chancery for the purpose of setting aside a deed. ** The 
case is not at all varied by the circumstance that the untrue 
representation, or any of the untrue representations, may 
in the first instance have been the result of innocent eiror. 
If, after the error has been discovered, the party who has 
innocently made the incorrect representation suffers the 
other party to continue in error and act on the belief that 
no mistake has been made; this from the time of the 
discovery becomes, in the contemplation of this Court, a 
fraudulent misrepresentation, even though it was not so 
originally" (o). We do not know of any authority against 
this being the true doctrine of common law as well as of 
equity, or as applicable to an action for deceit as to the 
setting aside of a contract or conveyance. Analogy seems 
in its favour (j>). Since the Judicature Acts, however, it 
is sufficient for English purposes to accept the doctrine 
from equity. The same rule holds if the representation 
was true when first made, but ceases to be true by reason 
of some event within the knowledge of the party making 
it and not within the knowledge of the party to whom it 
is made (q). 

equity (20 Ch. Dir. 13), bat thia 
waa an extra-jadioial diotam ; and 
see per Bowen L-J., 84 Gh. Dir. at 
p. 594, deolining to accept it. 

{q] Traill t. Baring (18^4) 4 D. 
J. 8. 318 ; the difficulty of making 
out how there was any ropreaen- 
tation of fact in that case as dis- 
tinguished from a promise or con- 
dition of a contract is not mate- 
xial to the present purpose. 



(o) SsyntU t. 8pry$ (1862) 1 D. 
M. G. 660, 709, Lord Granworth: 
op. Jessel M.B., Medgra^ y. Surd 
(1881) 20 Gh. DiT. 12, 18, 61 L. J. 
Gh. 113. 

( p) Gompare the doctrine of con- 
tinuous taking in trespass d* bonit 
atportatiit which is carried out to 
graver consequenoes in the crimi- 
nal law. Jessel M. R. assumed 
the common law rule to be in 
some way narrower than that of 



RECKLESS ASSERTION. 



269 



On the other hand if a man states as fact what he does AsaertionB 
not believe to he fact, he speaks at his peril; and this recklesB 
whether he knows the contrary to be tnie or has no know- 'fimoranoo. 
ledge of the matter at all, for the pretence of having 
certain information which he has not is itself a deceit. 
^^He takes upon himself to warrant his own belief of the 
tnith of that which he so asserts " (r). " If persons takei 
upon themselves to make assertions as to which they are 
ignorant whether they are true or untrue, they must, in aj 
civil point of view, be held as responsible as if they 
asserted that which they knew to be untrue " {s). These^ 
dicta, one of an eminent common law judge, the other of 
an eminent chancellor, are now both classical ; their direct 
application was to the repudiation of contracts obtained by 
fraud or misrepresentation, but they state a principle which 
is well understood to include liability in an action for de- 
ceit (t). The ignorance referred to is conscious ignorance, 
the state of mind of a man who asserts his belief in a fact 
''when he is conscious that he knows not whether it 
be true or false, and when he has therefore no such 
beUef"(t*). 

With regard to transactions in which a more or less Bnaoliof 

• 8D60iftl 

stringent duty of giving full and correct information (not duty to 
merely of abstaining from falsehood or concealment equi- f^oTj^or- 
valent to falsehood) is imposed on one of the parties, it motion. 



(r) Maule J., Swmt r. Sdmondt 
(1853) 13 0. B. 777, 786, 22 L. J. 
O.P. 211. 

(«) liOid Cairnfl, Seete River 
Silver Mining Co, t. Smith (1869) 
L. R. 4 H. L. 64, 79, 39 L. J. Gh. 
849. See per Sir J. Hannen in 
Feeh y. Derry, 37 Gh. Div. at p. 
681. Eren Lord Bramwell allows 
Lord Gaims's diotom (14 App. Ga. 



at p. 361). 

(i) Taylor T. Aehton (1843) 11 
M. k W. 401, 12 L. J. Ex. 363 ; 
EdgingUm y. Fitzmauriee (1885) 29 
Gh. Diy. 469, 479, 481, 56 L. J. 
Gh. 660; op. Smith y. Chadwiek 
(1884) 9 App. Ga. at p. 190, par 
Lord Selbome. 

(«) Lord Hersohell, Derry y. 
Feek^ 14 App. Ga. at p. 871. 



270 



WRONGS OP FRAUD AND MALICE. 



may be doubted whether an obUgation of this kind annexed 
by law to paitioulajr dasses of contracts can ever be treated 
as independent of contract. If a misrepresentation by a 
vendor of real property, for example, is wilfuUy or reck* 
lessly false, it comes within the general description of de* 
ceit. But there are errors of mere inadTertenoe which 
constantly sufiGioe to avoid contracts of these kinds, and in 
such cases I do not think an action for deceit (or the 
analogous suit in equity) is known to have been main* 
tained. Since Derry v. Peek it seems dear that it could 
not be. As regards these kinds of contracts, therefore — 
but, it is submitted, these only — ^the right of action for 
misrepresentation as a wrong is not co-extensive with the 
right of rescission. In some cases compensation may be 
recovered as an exclusive or alternative remedy, but on 
different grounds, and subject to the special character and 
terms of the contract. 



Estoppel. 

Burrowet 

V. Lock : 

former 

Bupposed 

rule of 

equity. 



In the absence of a positive duty to give correct in- 
formation or full and correct answers to inquiry, and in 
the absence of fraud, there is still a limited class of cases 
in which a man may be held to make good his statement 
on the ground of estoppel. Until quite lately it was 
supposed to be a distinct rule of equity that a man who 
has misrepresented, in a matter of business, facts which 
were specially within his knowledge, cannot be heard to 
say that at the time of making his statement he forgot 
those facts. But since Derry v. Peek {x) this is not the 
rule of English courts. There is no general duty to Tito 
care, much or little, in making statements of fact on which 
other persons are likely to act (y). If there is no contract 



{x) 14 App. Oft. 887, 68 L. J. Gh. 
864. 
(y) An^tfs T. Cliffwrd^ '91, 2 Ch. 



449, 60 L. J. Oh. 448, 0. A., U 
Zievre y. Oould, '93, 1 Q. B. 491, 
62 L. J. Q. B. 863, 4 B. 274, 0. A. 



deceit: special bules. 



271 



Bind no breach of specifio duty, nothing short of fraud or 
estoppel will suffioe. And we have to remember that 
estoppel does not give a cause of action but only supplies a 
kind of artifioial evidence (s). One of the oases hitherto 
relied on for the supposed rule (a) can be supported on the 
ground of estoppel, but on that ground only ; a later and 
apparently not less considered and authoritative one (b) 
cannot be supported at all. 

In short the decision of the House of Lords in Derrj/ v.l 
Peek is that even the grossest carelessness in stating 
material facts is not equivalent to fraud; and the sub- 
stance of the decision is not altered by the results turning 
out to be of wider scope, and to have more effect on other 
doctrines supposed to be settled, than at the time was 
apprehended by a tribunal of whose acting members not 
one had any working acquaintance with courts of equity. 

The effects of Derry v. Peekj as regards the particular 
class of company cases to which the decision immediately 
applied, have been neutralized by the Directors' Liability 
Act, 1890 (c) . As this Act '' is framed to meet a particular 
grievance, and does not replace an unsound doctrine which 
leads to unfortunate results by a sounder principle which 
would avoid them " (rf), we have no occasion to do more 
than mention its existence. 



(c) It is not a necessary condition of liability that the Inteiition 
misrepresentation complained of should have been made statement, 
directiy to the plaintiff, or that the defendant should have 



(s) Low ▼. BomerU, ^91, 3 Ch. 
82, 60 L. J. Ch. 694, C. A., see per 
Bowen L. J. '91, 3 Ch. at p. 106. 

(a) Burrowet r. Lock (1806) 10 
Yes. 470, 8 B. R. 33, 866, see per 
lindley L. J., '91, 8 Ch. at p. 101. 

ih) Slim Y. Croueher (1860) 1 D. 



E. J. 618 ; Low t. Bauverie, aboye, 
per Lmdley L. J. '91, 3 Ch. at 
p. 102. 

(e) 63 & 64 Viot. c. 64. See 
thereon the Supplement to Lindlej 
on Companies, published in 1891. 

{d) Op. eU. 2. 



272 WRONGS OF FRAUD AND MAUCE. 

intended or desired any harm to oome to him. It is 
enough that the representation was intended for him to 
act upon, and that he has acted in the manner contem- 
plated, and suffered damage which was a natural and 
probable consequence. .If the seller of a gun asserts that 
it is the work of a well-known maker and safe to use, that 
as between him and the buyer, is a warranty, and the 
buyer has a complete remedy in contract if the assertion 
is found untrue ; and this will generally be his better 
remedy, as he need not then allege or prove anything 
about the defendant's knowledge; but he may none the 
less treat the warranty, if it be fraudulent, as a substan- 
tive ground of action in tort. If the buyer wants the gun 
not for his own use, but for the use of a son to whom he 
means to give it, and the seller knows this, the seller's 
assertion is a representation on which he intends or expects 
the buyer's son to act. And if the seller has wilfully or 
recklessly asserted that which is false, and the gun, being 
in fact of inferior and unsafe manufacture, bursts in the 
hands of the purchaser's son and wounds him, the seller is 
liable to that son, not on his warranty (for there is no 
contract between them, and no consideration for any), but 
for a deceit (e). He meant no other wrong than obtaining 
a better price than the gun was worth ; probably he hoped 
it would be good enough not to burst, though not so good 
as he said it was ; but he has put another in danger of life 
and limb by his falsehood, and he must abide the risk. 
We have to follow the authorities yet farther. 

Represen- ^ statement circulated or published in order to be acted 

tations to 

a oUss of on by a certain class of persons, or at the pleasure of any 
^mmmt. 0^^ ^0 whose hands it may come, is deemed to be made to 



Walter. 



JEx 



{e) Langridge v. Levy (1837) 2 H. & W. 619 : affirmed (very brieEy) in 



^ lEx. Oh. 4 H. & W. 338. 



DECEIT BY PUBLIC BEPBESENTATIONS. 



273 



that person who acts upon it, though he may be wholly 
unknown to the issuer of the statement. A bill is pre- 
sented for aoeeptanoe at a merchant's office. He is not 
there, but a friend, not his partner or agent, who does his 
own business at the same place, is on the spot, and, 
assnTning without inquiry that the bill is drawn and pre- 
sented in the regular course of business, takes upon him- 
self to accept the bill as agent for the drawee. Thereby 
he represents to every one who may become a holder of 
the bill in due course that he has authority to accept ; and 
if he has in fact no authority, and his acceptance is not 
ratified by the nominal principal, he is liable to an action 
for deceit, though he may haye thought his conduct was 
for the benefit of all parties, and expected that the accept- 
ance would be ratified (/). 



Again the current time-table of a railway company is a Dentm y. 
representation to persons meaning to trayel by the com- co, 
pany's trains that the company will use reasonable dili- 
gence to despatch trains at or about the stated times for 
the stated places. If a train which has been taken off is 
announced as stiU running, this is a false representation, 
and (belief in its truth on the part of the company's ser- 
vants being out of the question) a person who by relying 
on it has missed an appointment and incurred loss may 
have an action for deceit against the company {ff). Here' 



(/) PolhiU V. TTaU^r (18S2) 3 
B. & Ad. 114. The more recent 
dootzine of implied warranty was 
then unknown. 

(^) So heldxmauimoiulj in 2>m- 
ton Y. G, J\r. 22. Co. (1866) 6 E. & 
B. 860, 25 L. J. Q. B. 129. Lord 
Campbell 0. J., and Wightman 
J., held {dubit. Crompton J.) that 
there was also a cause of action in 

P. 



contract. The difficultj often felt 
about maintaining an action for 
deceit against a coiporation does 
not seem to have occurred to any 
member of the Ck>urt. It is of 
course open to argpiment that as to 
the cause of action in tort this case 
is overruled by Deny v. P<w*, 14 
App. Ca. 337, 68 L. J. Ch. 864 ; 
and now Low y. Bouverie^ '91, 



274 



WRONGS OF FRAUD Aim MALIGE. 



there is no frauduleiit intention. The default is really a 
negligent omission ; a page of the tables should haye been 
oanoelledy or an erratum-slip added. And the negligence 
oould hardly be called gross, but for the manifest import- 
ance to the public of accuracy in these announcements. 



Feeh v. Again the prospectus of a new company, so far forth as 

'^^^ it alleges matters of fact concerning the position and pro- 
spects of the undertaking, is a representation addressed to 
all persons who may apply for shares in the company ; but 
it is not deemed to be addressed to persons who after the 
establishment of the company become purchasers of shares 
. at one or more remoyes from the original holders (A), for 
I the office of the prospectus is exhausted when once the 
I shares are allotted. As regards those to whom it is ad- 
dressed, it matters not whether the promoters wilfully use 
misleading language or not, or do or do not expect that 
the undertaking will ultimately be successful. The ma* 
terial question is, '' Was there or was there not misrepre- 
sentation in point of fact P " (i). Innocent or beneyolent 
motives do not justify an unlawful intention in law, 
though they are too often allowed to do so in popular 
morality. 

Reliance (d) As to the plaintiff's action on the faith of the 

represen- defendant's representation. 

tation. ^ i^y words or acts represents to B. that a certain state 



3 Gh. 82, 60 L. J. Gh. 694, seemB to 
point in the same direction . A man 
who puts forth bj inadvertenoe a 
statement contrary to facts which 
he knows is hardly fraudulent in 
the sense of those decisions. It 
would be fraud if he persisted in 
the statement after having his at- 
tention called to it. 



(A) Feek t. Gumey (1873) L. B. 
6 H. L. 377, 400, 411, 43 L. J. 
Oh. 19. 

(i) Lord Cairns, L. R. 6 H. L. 
at p. 409. Cp. per Lord Black- 
bum, Smith y . Chadwickf 9 App. Ca. 
at p. 201 ; Lord Hersohell, Deny 
y. Fgekf 14 App. CSa. at pp. 366, 
371. 



DECEIT : BEUANCE ON REPEESENTATION. 275 

of things exists^ in order to induce B. to act in a certain 
way. The simplest case is where B., relying wholly on 
A.'s statement, and having no other source of information, 
acts in the manner contemplated. This needs no further 
comment. The case of B. disbelieving and rejecting A.'s 
assertion is equally simple. 

Another case is that A.'s representation is never com- 
municated to B. Here, though A. may have intended to 
deceive B., it is plain that he has not deceived him ; and 
an unsuccessful attempt to deceive, however unrighteous it 
may be, does not cause damage, and is not an actionable 
Virrong. A fraudulent seller of defective goods who 
patches up a flaw for the purpose of deceiving an inspec- 
tion cannot be said to have thereby deceived a buyer who 
omits to make any inspection at all. We should say this 
was an obvious proposition, if it had not been judicially 
doubted {k). The buyer may be protected by a condition 
or warranty, express or implied by law from the nature of 
the particular transaction ; but he cannot complain of a 
merely potential fraud directed against precautions which 
he did not use. A false witness who is in readiness but 
is not called is a bad man, but he does not commit 
perjury. 

Yet another case is that the plaintiff has at hand the Means of 
means of testing the defendant's statement, indicated by ^^ 
the defendant himself, or otherwise within the plaintiff's '^ ^^ 
power, and either does not use them or uses them in a inde- 
partial and imperfect manner. Here it seems plausible at ^niry. 
first sight to contend that a man who does not use obvious 

{k) Sor^faU y. Th<mas (1862) 1 dissented from by Oockbnm 0. J., 

H. ft C. 90, 31 L. J. Ex. 322, a L. B. 6 Q. B. at p. 605. The case 

case of contract, so that a fortiori was a peculiar one, but could not 

an action for deceit would not lie ; have been otherwise decided. 

t2 



276 WBONQS OF FRAUD AND UAJLIC^ 

means of Terifying the representationB made to him does 
not deserve to be compensated for any loss he may inour 
by reljdng on them without inquiry. But the ground of 
this kind of redress is not the merit of the plaintiff, but the 
demerit of the defendant : and it is now settled law that 
one who chooses to make positive assertions without warrant 
shall not excuse himself by saying that the other party 
need not have relied upon them. He must show that his 
representation was not in fact relied upon. In the same 
spirit it is now understood (as we shall see in due place) 
that the defence of contributory negligence does not mean 
that the plaintiff is to be punished for his want of caution, 
but that an act or default of his own, and not the negli- 
gence of the defendant, was the proximate cause of his 
damage. If the seller of a business fraudulently over- 
states the amount of the business and returns, and thereby 
obtains an excessive price, he is liable to an action for 
deceit at the suit of the buyer, although the books were 
accessible to the buyer before the sale was concluded (/). 

Perfono- And the same principle applies as long as the party 
qi^ will substantially puts his trust in the representation made to 
^^ him, even if he does use some observation of his own. 

A cursory view of a house asserted by the vendor to be 
in good repair does not preclude the purchaser from com- 
plaining of substantial defects in repair which he afterwards 
discovers. " The purchaser is induced to make a less 
accurate examination by the representation, which he had 
a right to believe " (m). The buyer of a business is not 
deprived of redress for misrepresentation of the amount of 
profits, because he has seen or held in his hand a bundle 

(0 DobeUy. Stevmt (1825) 3 B. Ves. at p. 510, 8 R. R. 39 (oroaa 
k 0. 623. snitB for speciflo perfoxmanoe and 

(m) Dyer y. Earfftave (1805) 10 oompenaation). 



DECEIT : KNOWLEDGE OE INQUIEY. 277 

of papers alleged to contain the entries showing those 
profits {n). An original shareholder in a company who 
was induced to apply for his shares by exaggerated and 
untrue statements in the prospeofais is not less entitled to 
relief because facts negativing those statements are dis- 
closed by documents referred to in theprospectus, which he 
might have seen by applying at the company's office (o). 

In short, nothing will excuse a culpable misrepresenta- 
tion short of proof that it was not relied on, either because 
the other party knew the truth, or because he relied wholly 
on his own investigation, or because the alleged fact did 
not influence his action at all. And the burden of this 
proof is on the person who has been proved guilty of 
material im8repre6entation(i,). He may. prove any of these 
things if he can. It is not an absolute proposition of law 
that one who, having a certain allegation before him, acts 
as belief in that allegation would naturally induce a man 
to act, is deemed to have acted on the faith of that 
allegation. It is an inference of fact, and may be ex- 
cluded by oontraiy proof. But the inference is often 
irresistible {q)» 

Difficulties may arise on the construction of the state- Ambigu- 
ment alleged to be deceitful. Of course a man is respon- ^^Je? 
sible for the obvious meaning of his assertions but where 
the meaning is obscure, it is for the party complaining to 
show that he relied upon the words in a sense in which 

(n) Redgrave v. Burd (188 1) 20 general one, promoters of a oom- 

Gh. Diy. 1, 51 L. J. Ch. 113 (action panj being under a speoial duty of 

for speoific perf ormanoe, counter- fall difldosure. 

claim for reedsdon and damages). (p) See espedally^ per Jeaflel 

(o) Central E. Co, of Venetuela y. M. R., 20 Ch. Div. 21. 

Kiaeh (1867) L. B. 2 H. L. 99, 120, (q) See per Lord Blackburn, 

36 L. J. Ch. 849, per Lord Chebna- Smiih y. Chadwiok^ 9 App. Ca. at 

ford. A case of this kind alone p. 196. 
would not prove the rule as a 



278 



WBONGS OF FRAUD AND MALICE. 



they were false and misleading, and of wluch they were 
fairly capable (r). As most persons take the first oonstruo« 
tion of obsonre words which happens to strike them for the 
obviously right and only reasonable construction, there 
must always be room for perplexity in questions of this 
kind. Even judicial minds will differ widely upon such 
points, after full discussion and consideration of the various 
constructions proposed («). 



Lord Ten- (e) It has already been observed in general that a false 
Act. representation may at the same time be a promise or term 

of a contract. In particular it may be such as to amount 
to, or to be in the nature of, a guaranty. Now by the 
Statute of Frauds a guaranty cannot be sued on as a 
promise unless it is in writing and signed by the party to 
be charged or his agent. If an oral guaranty could, be 
sued on in tort by treating it as a fraudulent affirmation 
instead of a promise, the statute might be largely evaded. 
Such actions, in fact, were a novelty a century and a 
quarter after the statute had been passed (^), much less 
were they foreseen at the time. It was pointed out, after 
the modem action for deceit was established, that the 
jurisdiction thus created was of dangerous latitude (u) ; 
and, at a time when the parties could not be witnesses in a 
court of common law, the objection had much force. By 



(r) Smith y. Chadwick (1884) 
9 App. Ga. 187, 63 L. J. Ch. 
873, espeoiallj Lord Blaokbum's 
opinion. 

(«) In the case last cited (1881-2) 
(Fry J., and 0. A. 20 Ch. Diy. 27), 
Fry J. and Lord BramweU de- 
cidedly adopted one oonfitmction 
of a partionlar statement ; Lindley 
L. J. the same, though less de- 
cidedly, and Cotton L. J. another, 



while Jessel M. R., Lord Selbome, 
Lord Blackburn, and Lord Watson 
thought it ambiguous. 

(0 See the dissentang judgment 
of Grose J. in PasUy v. Freeman 
(1789) 3 T. R. 61, 1 R. R. 634, 
636, and 2 Sm. L. C. 

(w) By Lord Mdon in Swmt y. 
BUknell (1801) 6 Ves. 174, 182, 186, 
6 R. R. 246, 261, 265. 



FALSE GUABANTIES. 



279 



Lord T enterden*8 Act, as it is commonly called (a:), the 
following provision was made : — 

" No action shall be brought whereby to charge any 
person upon or by reason of any representation or assur- 
ance made or given concerning or relating to the character, 
conduct, credit, ability, trade, or dealings of any other 
person, to the intent or purpose that such other person may 
obtain credit, money, or goods upon (^), unless such repre- 
sentation or assurance be made in writing, signed by the 
party to be charged therewith." 

This is something more stringent than the Statute of 
Frauds, for nothing is said, as in that statute, about the 
signature of a person " thereunto lawfully authorized," and 
it has been decided that signature by an agent will not 
do(s). Some doubt exists whether the word "ability" 
does or does not extend the enactment to cases where the 
representation is not in the nature of a guaranty at all, 
but an a£Srmation about some specific circumstance in a 
person's affairs. The better opinion seems to be that only 
statements really going to an assurance of personal credit 
are within the statute (a). Such a statement is not the 
less within it, however, because it includes the allegation 
of a specific collateral circumstance as a reason {b). 

A more serious doubt is whether the enactment be now Quasre as 
practically operative in England. The word " action " of under the 

Jadica- 
(z) Swift y. Jewahuty (1874) Ex. ture Acts. 



(ar) 9 (>eo. IV. o. 14, s. 6. 

(y) Sic, It is belieyod that the 
word " credit " was accidentally 
transposed, so that the true read- 
ing would be *' obtain money or 
goods upon credit:" see Lyd^ y. 
Barnard (1886) 1 H. & W. 101, per 
Parke B. Other conjectural emen- 
dations are suggested in his judg- 
ment and that of Lord Abinger. 



Ch. L. B. 9 Q. B. 301, 43 L. J. 
Q. B. 56. 

(a) Parke and Alderson BB. in 
Z^dc y. Barnard (1836) note (y): 
contra Lord Abinger G. B. and 
Ghimey B. And see Buthop y. 
Balkia Consolidated Co. (1890) 25 
Q. B. Diy. 512, 59 L. J. Q. B. 665. 

(h) Swann y. FhiUipt (1838) 8 A. 
& E. 457. 



280 WBONGS OF FRAUD AND MALICE. 

oouTse did not inolude a suit in equity at the date of the 
Act, and the High Court has succeeded to all (and in some 
points more than all) the equitable jurisdiction and powers 
of the Court of Chancery. But that Court would not in a 
case of fraud, howeyer undoubted its jurisdiotioni act on 
the plaintiff's oath against the defendant's, without the 
corroboration of documents or other material facts ; and it 
would seem that in every case of this kind where the Court 
of Chancery had concurrent jurisdiction with the courts of 
common law (and it is difficult to assign any where it had 
not). Lord Tenterden's Act is now superseded by this rule 
of evidence or judicial prudence. 

Misrepre- There still remain the questions which arise in the case 
^l^^^i^ of a false representation made by an agent on account of 
agents. his principal. Bearing in mind that reckless ignorance is 
equivalent to guilty knowledge, we may state the alterna- 
tives to be considered as follows : — 

The principal knows the representation to be false and 
authorises the making of it. Here the principal is dearly 
liable ; the agent is or is not liable according as he does 
not or does himself believe the representation to be true. 

The principal knows the contrary of the representation 
to be true, and it is made by the agent in the general 
course of his employment but without specific authority. 

Here, if the agent does not believe his representation to 
be true, he commits a fraud in the course of his employ- 
ment and for the principal's purposes, and, according to 
the general rule of liability for the acts and defaults of an 
agent, the principal is liable (c). 

If the agent does believe the representation to be true, 
there is a difficulty ; for the agent has not done any wrong 
and the principal has not authorized any. Tet the other 

{e) Parke B., 6 If , & "W. 373. 



FRAUD BY OB THBOUGH AGENT. 



?8i 



party's damage is the same. That lie may rescind the 
contract^ if he has been misled into a contract, may now 
be taken as settled law {d). But what if there was not 
any contract, or rescission has become impossible ? Has 
he a distinct ground of action, and if so, how P Shall we 
say that the agent had apparent authority to pledge the 
belief of his principal, and therefore the principal is liable P 
in other words, that the principal holds out the agent as 
having not only authority but sufficient information to 
enable third persons to deal with the agent as they would 
with the principal P Or shall we say, less artificially, that 
it is gross negUgence to withhold from the agent informa- 
tion so material that for want of it he is likely to mislead 
third persons dealing with the principal through him, and 
such negligence is justly deemed equivalent to fraud P 
Such a thing may certainly be done with fraudiilent pur- 
pose, in the hope that the agent will, by a statement im- 
perfect or erroneous in that very particular, though not so 
to his knowledge, deceive the other party. Now this 
would beyond question be actual fraud in the principal, 
with the ordinary consequences (^). If the same thing 
happens by inadvertence, it seems inconvenient to treat 
such inadvertence as venial, or exempt it from the like con- 
sequences. We think, therefore, that an action lies against 
the principal; whether properly to be described, under 



{d) See PrinoipleB of Gontraoty 
6th ed. 552. In Cortrfbot y. Fowke, 
6 H. & W. 858, it is difficult to 
suppose that as a matter of fact 
the agent's assertion can have been 
otherwise than reoUess : what was 
actnaUj decided was that it was 
misdirection to tell the jury with- 
out qualification ** that the repre- 
sentation made by the agent must 
have the same effect as if made 



by the plaintiff himself:" the 
defendant's plea avening fraud 
without qualification. 

{e) Admitted by all the Barons 
in On^foot v. Fowhe ; Parke, 6 
H. & W. at pp. 862, 874, Bolfe at 
p. 370, Alderson at p. 372. The 
broader yiew of Lord Abinger's 
dissenting judgment of course in- 
cludes this. 



282 



WBONGS OF FRAUD AND HAUCE. 



oommon law forms of pleading, as an action for deceit, or 
as an analogous but special action on the case, there is no 
occasion to consider (/). 

On the other hand an honest and prudent agent may 
say, ^' To the best of my own belief such and such is the 
case," adding in express terms or bj other clear indication 
— " but I have no information from my principal." Here 
there is no ground for complaint, the other party being 
fairly put on inquiry. 



liabilitj' 
of oorpo- 
ntions 
herein. 



If the principal does not expressly authorize the repre- 
sentation, and does not know the contrary to be true, but 
the agent does, the representation being in a matter within 
the general scope of his authority, the principal is liable as 
he would be for any other wrongful act of an agent about 
his business. And as this liability is not founded on any 
personal default in the principal, it equally holds when the 
principal is a corporation (g). It has been suggested, but 
never decided, that it is limited to the amount by which 
the principal has profited through the agent's fraud. The 
Judicial Gonmiittee have held a principal liable who got 
no profit at all (A). 

But it seems to be still arguable that the proposed limi- 
tation holds in the case of the defendant being a corpora- 
tion (i), though it has been disregarded in at least one 



(/) The decision of the Honse of 
Lords in Deny y. Peek (1889) 14 
App. Ca. 337, 58 L. J. Gh. 864, 
tends however to make this opinion 
less probable. 

(^) Bartoiek v. Englith Joint Stock 
Bank (1867) Ex. Gh. L. R. 2 Ex. 
259, 36 L. J. Ex. 147 ; Maekay y. 
Commercial Bank of New Brunewiek 
(1874) L. R. 5 P. G. 394, 43 L. J. 
P. G. 31 ; Swire y. Franeie (1877) 3 



App. Ga. 106, 47 L. J. P. G. 18 
(J. G.); Mouldeworth y. City of 
Olatgow Bank (1880) So. 5 App. 
Ga. 317. See pp. 85, 86, above. 

(A) Swire y. Franeie-, last note. 

(t) Lord Granworth in Weeiem 
Bank of Scotland y. Addie (1867) 
L. R. 1 So. & D. at pp. 166, 167. 
Lord Ghelmsford's langoage is 
much more guarded. 



FRAUD BY OB THBOUGH AGENT. 



388 



comparatiyelj early deoLsion of an English superior court, 
the bearing of which on this point has apparently been 
overlooked (A). XJlpian, on the other hand, may be cited 
in its favour (/). 



The hardest case that can be put for the principal, and by BeaBon of 
no means an impossible one, is that the principal authorizes renUj 
a specific statement which he believes to be true, and ^**^^'^* 
which at the time of giving the authority is true ; before 
the agent has executed his authority the facts are mate- 
rially changed to the knowledge of the agent, but unknown 
to the principal ; the agent concecds this from the principal, 
and makes the statement as originally authorized. But the 
case is no harder than that of a manufacturer or carrier 
who finds himself exposed to heavy damages at the suit of 
an utter stranger by reason of the negligence of a servant, 
although he has used all diligence in choosing his servants 
and providing for the careful direction of their work. The 
necessary and sufficient condition of the master's responsi- 
bility is that the act or default of the servant or agent 
belonged to the class of acts which he was put in the 
master's place to do, and was committed for the master's 
purposes. And ^^no sensible distinction can be drawn 



{k) Dmton v. G. K It, Co. (1856) 
p. 273, above. No case ootild be 
etronger, for (1) the defendant was 
a corporation ; (2) there was no 
actiye or intentional falsehood, but 
the mere negligent continuance of 
an announcement no longer true; 
(3) the coiporation derived no pro- 
fit. The point, however, was not 
discussed. 

(/) D. 4. 3, de dolo malo, 15 } 1. 
Sed an in mimidpes de dolo detur 
actio, dubitatur. Et puto ex suo 
quidem dolo non posse dan, quid 



enim munioipes dolo faoere pos- 
suntP Sed si quid ad eos per- 
venit ex dolo eorum qui res eorum 
administrant, puto dandam. The 
Roman lawyers adhered more 
closely to the original conception 
of moral fraud as the ground of 
action than our courts have done. 
The actio de dolo was famoBU, and 
was never an alternative remedy, 
but lay only when there was no 
other (si de his rebus alia actio non 
erit), D. h. t. I. 



284 



WB0NQ8 OF FRAUD AND MALICE. 



between the case of fraud and the case of any other wrong." 
The authority of Barmck y. English Joint Stock Bank (m) 
is belieyed, notwithstanding the doubts still sometimes 
expressed, to be oonolusiye. 



Slander of 
title. 



H.— Slander of Title. 

The wrong called Slander of Title is in truth a special 
yariety of deceit, which differs from the ordinary type in 
that third persons, not the plaintiff himself, are induced 
by the defendant's falsehood to act in a manner causing 
damage to the plaintiff. Notwithstanding the current 
name, an action for this cause is not like an action for 
ordinary defamation ; it is '^ an action on the case for 
special damage sustained by reason of the speaking or 
publication of the slander of the plaintiff's title "(n). Also 
the wrong is a malicious one in the only proper sense of 
the word, that is, absence of good faith is an essential 
condition of liability (o) ; or actual malice, no less th an 
special damage , is of th e gist of the action. The special 
damage required to support this kind of action is actual 
damage, not necessarily damage proyed with certainty in 
eyery particular. Such damage as is the natural conse- 
quence of the false statement may be special enough 
though the connexion may be not specifically proyed {p). 



Recent This kind of action is not frequent. Formerly it 

eztenaionB i r. i i*j] ijjj. x*:i* 

of the appears to haye been appued only to statements m dis- 

prinoiple. 



(m) L. B. 2 Ex. 269, 266. 

(«) Tindal 0. J., Malaehy y. 
Soper (1836) 3 Bing. K. 0. 871 ; 
Bigelow L. G. 42, 62. 

(o) HaUey y. Brotherhood (1881) 
19 Gh. Diy. 386, 61 L. J. Ch. 233, 
oonfinning preyiouB authoritiee. 
As to the particular rabjeot-matter 



in that case. Bee the Patents, De- 
signs and Trade Harks Act, 1883, 
s. 32, whioh gives astatatoiy cause 
of action ; Skinner ^ Co, y. Shew ^ 
Co., '93, 1 Gh. 413, 62 L. J. Gh. 
196, 2 R. 179, G. A. 

(p) BatehfiY, Evm9,'92,2Q,.'B 
624, 61 L. J. Q. B. 636, G. A. 



SLANDER OF TITLE. 286 

paragement of the plaintiS's title to real property. It is 
now imderBtood that the same reason applies to the pro- 
tection of title to chattels, and of exclusive interests analo- 
gous to property, though not property in the strict sense, 
like patent rights and copjnright. But an assertion of title 
made by way of self-defence or warning in any of these 
matters is not actionable, though the claim be mistaken, 
if it is made in good faith (q). In America the law has 
been extended to the protection of inchoate interests under 
an agreement. If A. has agreed to sell certain chattels to 
B., and C. by sending to A. a false telegram in the name 
of B., or by other wilfully false representation, induces A. 
to believe that B. does not want the goods, and to sell to 
C. instead, B. has an action against C. for the resulting 
loss to him, and it is held to make no difference that the 
original agreement was not enforceable for want of satisfy- 
ing the Statute of Frauds (r) . 

A disparaging statement concerning a man's title to use 
an invention, design, or trade name, or his conduct in the 
matter of a contract, may amount to a libel or slander on 
him in the way of his business : in other words the special 
wrong of slander of title may be included in d efamation^ 
but it is evidently b et ter f^r ^| ^^ pjftinfiff f.^ 'r^]j gry 
the general law of defamation if he can, as thus he 
escapes the troublesome burden of proving malice («). 
Again an action in the nature of slander of title lies for 
damage caused by wilfully false statements tending to 

{q) Wrm y. Weild (1869) L. R. (1880) 15 Gh. D. 22, 49 L. J. Oh. 

4 Q. B. 730, 36 L. J. Q. B. 327 ; 812 (copyright in design), see 19 

Hahey y. Brotherhood^ note (o) last Oh. D. 391. 

page (patent; isiWreny, Weildihe (r) B&nton y. Fratt (1829) 2 

action is said to be of a new Wend. 385 ; Rice y. Manley (1876) 

kind, bat Bustainable with proof of 66 N. 7. (21 Siokels) 82. 
malice) ; Steward y. Toung (1870) («) See Thorley*8 Cattle Food Co. 

ij, B. 5 0. P. 122, 39 L. J. 0. P. y. Jf«#«flw (1879) 14 Oh. Diy. 763 ; 

85 (title to goods) ; JHehe y. Brooke Dicks y. Brookt, last note but one. 



S86 WB0NG8 OF FRAUD AND MALICE. 

damage the plaintifTB busmess, sooh aa that he has oeasedto 
carrjit on ; and it is immaterial whether the statements are 
or are not iajnrious to the plaintiff's personal oharaoter {f). 
In short, *' that an action will lie for written or oral false- 
hoods, not actionable per se nor eyen defamatory, where 
they are malidously published, where thej are caloulated 
in the ordinary course of things to produce, and where 
they do produce, actual damage, is established law " (n). 

It has been held in Massachusetts that if A. has exclu- 
sive privileges imder a contract with B., and X. by pur- 
posely misleading statements or signs induces the public 
to belieye that X. has the same rights, and thereby diverts 
custom from A., X. is liable to an action at the suit of 
A. (r) . In that case the defendants, who were coach owners, 
used the name of a hotel on their coaches and the drivers' 
caps, so as to suggest that they were authorized and 
employed by the hotel-keeper to ply between the hotel and 
the railway station ; and there was some evidence of 
express statements by the defendants' servants that their 
coach was ^' the regular coach." The plaintiffs were the 
coach owners in fact authorized and employed by the hotel. 
The Court said that the defendants were free to compete 
with the plaintiffs for the carriage of passengers and goods 
to that hotel, and to advertise their intention of so doing 
in any honest way ; but they must not falsely hold them- 
selves out as having the patronage of the hotel, and there 
was evidence on which a jury might well find such holding 
out as a fact. The case forms, by the nature of its facts, 
a somewhat curious link between the general law of false 
representation and the special rules as to the infringement 
of rights to a trade mark or trade name {tc). No English 

(4 Matelife y. Sffant, '92, 2 Q. B. {v) Marah y. SiUinffs (1851) 7 

524, 61 L. J. Q. B. 635, 0. A. Cnah. 322, and Bigdow L. 0. 59. 

(«) Ibid, '92, 2 Q. B. at p. 627, (tr) The instrooHooB giyen at the 

per Chtr, trial (Bigelow L. 0. at p. 63) were 



MALICIOUS ABUSE OF PROCESS. 



287 



oase muoh like it has been met with : its peculiarity is that 
no title to any property or to a defined legal right was in 
question. The hotel-keeper oould not give a monopoly, but 
only a sort of preferential comity. But this is practically 
a yaluable privilege in the nature of goodwill, and equally 
capable of being legally recognized and protected against 
fraudulent infringement. Goodwill in the accustomed 
sense does not need the same kind of protection, since it 
exists by virtue of some express contract which affords a 
more convenient remedy. Some years ago an attempt was 
made, by way of analogy to slander of title, to set up an 
exclusive right to the name of a house on behalf of the 
owner as against an adjacent owner. Such a right is not 
known to the law {x). 

The protection of trade marks and trade names was Trade 
originally undertaken by the courts on the ground of J^^ 
preventing fraud (y). But the right to a trade mark, after ^^^^^ 
being more and more assimilated to proprietary rights (s), 
has become a statutory franchise analogous to patent rights 
and copyright (a) ; and in the case of a trade name, 
although the use of a similar name cannot be complained 
of unless it is shown to have a tendency to deceive cus- 
tomers, yet the tendency is enough ; the plaintiff is not 
bound to prove any fraudulent intention or even negligence 



held to have drawn too sharp a 
diatmction, and to have laid down 
too narrow a measore of damages, 
and a new trial was ordered. It 
was also said that actual damage 
need not be proved, ted qu. 

{x) Day V. Broumrigg (1878) (le- 
versing Malins V.-O.) 10 Oh. Div. 
294, 48 L. J. Ch. 173. 

(y) See per Lord Bladkbnm, 8 
App.CSa.atp. 29; Lord Weetbnrj, 



L. R. 6 H. L. at p. 622 ; Mellish 
L. J., 2 Ch. D. at p. 458. 

{z) Singer Manufaeturing Co. v. 
Wileon (1876) 2 CSh. D. 434, per 
Jessel M. B. at pp. 441-2 ; James 
L. J. at p. 451 ; Mellish L. J. at 
p. 454. 

(a) Patents, Designs, and Trade 
Marks Act, 1883, 46 & 47 Vict. 
0. 57. 



28d 



WBONQS OF FR^UD AND MALICE. 



against the defendant (i). The wrong to be redressed is 
oonoeived no longer as a species of fraud, but as being 
to an incorporeal franchise what trespass is to the pos- 
session, or right to possession, of the corporeal subjects of 
property. We therefore do not pursue the topic here. 



proseoa- 
tioQ. 



m. — Malicious Prosecution and Abuse of Process. 

We have here one of the few cases in which proof of 
evil motive is required to complete an actionable wrong. 
** In an action for malicious prosecution the plaintiff has 
to prove, first, that he was innocent and that his innocence 
was pronounced by the tribunal before which the accusa- 
tion was made ; secondly, that there was a want of reason- 
able and probable cause for the prosecution, or, as it may 
be otherwise stated, that the circumstances of the case 
were such as to be in the eyes of the judge inconsistent 
with the existence of reasonable and probable cause (c) ; 
and, lastly, that the proceedings of which he complains 
were initiated in a malicious spirit, that is, from an indirect 
and improper motive, and not in furtherance of justice " (d). 
And the plaintiff's case fails if his proof fails at any one 
of these points. 80 the law has been defined by the 
Court of Appeal and approved by the House of Lords. 



(b) Smdrik$ t. M<mtagu (1881) 
17 Gh. IHy. 638, 60 L. J. Ch. 466 ; 
Singtr Manufacturing Co, y. Loog 
(1882) 8 App. Ca. 16. 

(e) The facts have to be found 
hj the juy, bat the mferenoe that 
on those facts there was or was 
not reasonable and probable cause 
is not for the jury but for the 
Court : op. the authorities on false 
imprisonment, pp. 202 — 208» above. 

{d) Bowen L. J., Abrath v. N. E. 



E. Co. (1888) 11 Q. B. Div. 440, 
466, 62 L. J. Q. B. 620 : the deci- 
sion of the Court of Appeal was 
affirmed in H. L. (1886) 11 App. 
Ca. 247, 66 L. J. Q. B. 457. A 
pUdntifl who, being indicted on 
the prosecution complained of, has 
been found not guilty on a defect 
in the indictment (not now a pro- 
bable event) is suffioientlj innocent 
for this purpose : Wiekt v. FmtKam 
(1791) 4 T. R. 247, 2 R. R. 374. 



MAUCTOUS ABUSE OP PROCESS. 289 

It seems needless for the purposes of this work to add 
illustrations from earlier authorities. 

It is no excuse for the defendant tiiat he instituted the 
prosecution under the order of a Court, if the Court was 
moved bj the defendant's false evidence (though not at his 
request) to give that order, and if the proceedings in the 
prosecution involved the repetition of the same falsehood. 
For otherwise the defendant would be allowed to take 
advantage of his own fraud upon the Court which ordered 
the prosecution (e). 

As in the case oJ^ deceit, and for similar reasons, it has 
been doubted whether an action for malicious prosecution 
will lie against a ooiporation. It seems, on principle, that 
such an action will lie if the wrongful act was done bj a 
servant of the corporation in the course of his employment 
and in the company's supposed interest, and it has been so 
held (/) ; but there are dicta to the contrary (^), and in 
particular a recent emphatic opinion of Lord Bram- 
well's (A), which, however, as pointed out by some of his 
colleagues at the time (t), was extra-judicial. 

Grenerally speaking, it is not an actionable wrong tolMi^oiouB 
institute civil proceedings without reasonable and probable! ^edlngv! 
cause, even if malice be proved. For in contemplation o9 
law the defendant who is unreasonably sued is sufficiently 
indemnified by a judgment in his favour which gives him 
his costs against the plaintifi (k). And special damage 

{e) IiUjohnY.Mackinder{I^.Ch, (ftyLord Pitzgenld, U App. 

1861) 9 G. B. N. S. 605, 30 L. J. Oa. at p. 244 ; Lord Selbome at 

C. P. 257 (diss. Blaokbam and p. 256. 

Wightman JJ.). {k) It iaoommon knowledge that 

(/) Edwards Y. Midland Mail. Co. the oosts aUowed in an action are 

(1880) 6 Q. B. D. 287, 50 L. J. hardljerer arealindemnitj. The 

Q. B. 281, Pry J. tme reason Ib that litigation must 

{g) See the judgment in the oase end somewhere. If A. maj soe 

last cited. B. lor bring^ing a vexatious action, 

(A) 11 App. Ca. at p. 250. then^ if A. fails to persoade the 

P. U 



290 



WBONGS OF FRAUD AVD MALICE. 



beyond the expense to whioh he has been put cannot well 
be so connected with the suit as a natural and probable 
consequence that the unrighteous plaintiff^ on the ordi- 
nary principles of liability for indirect consequences, will 
be answerable for them(/). ''In the present day, and 

I according to our present law, the bringing of an ordi- 
^ naiy action, however maliciously, and however great the 
iwant of reasonable and probable cause, will not support a 
subsequent action for malicious prosecution " (m). 
y But there are proceedings which, though civil, are not 
, ordinary actions, and fall within the reason of the law 
which allows an action to lie for the malicious prosecution 
of a criminal charge. That reason is that prosecution on 
. a charge '' involving either scandal to reputation, or the 
possible loss of liberty to the person " (n), necessarily and 
manifestly imports damage. Now the commencement of 
proceedings in bankruptcy against a trader, or the analogous 
process of a petition to wind up a company, is in itself a 
blow struck at the credit of the person or company whose 
affairs are thus brought in question. Therefore such a 
proceeding, if instituted without reasonable and probable 
cause and with malice, is an actionable wrong (o). Other 



Court that B.'s original suit was 
vexatious, B. maj again sue A. 
lor bringing this latter action, and 
•0 Md inJInUum, 

(Q See the full exposition in the 
Court of Appeal in Quart* Sill 
Gold Mining Co. y. Byr^ (1888) 
11 Q. B. Dir. 674, 62 L. J. Q. B. 
488, especially- the judgment of 
Bowenli. J. 

(m) Bowen L. J., 11 Q. B. D. at 
p. 690. There has been a oontrazy 
decision in Vermont: Clouon v. 
SiapUt (1869) 42 Vt. 209 ; 1 Am. 
Jlep. 316. We do not think it is 
generally accepted in other juris- 



dictions ; it is certainly in accord- 
anoe with the opinion expressed 
by Butler in his notes to Co. Lit. 
161 s, but Butler does not attend 
to the distinction by which the 
authorities he relies on are ex- 
plained. 

(a) IIQ. B. Diy. 691. 

(o) QuarU Hill Gold Mininff Co. r, 
.Eyyv (1883) note (/). Theoontrsiy 
opinions expressed in Johtuon t. 
Bm^nm (1871) L. B. 6 Ex. 329, 
40 L. J. £x. 201, with referenoe 
to proceedings under the Bank- 
ruptcy Act of 1869, are disap- 
proyed : under the old bankruptcy 



icAuaons abuse of pkocess. 291 

similar exceptional oases were possible so long as there 
were forms of dvil process oommenoing with personal 
attachment ; but such procedure has not now any place in 
our system ; and the rule that in an ordinary way a fresh 
action does not lie for suing a civil action without cause 
has been settled and accepted for a much longer time (jd). 
In common law jurisdictions where a suit can be commenced 
by arrest of the defendant or attachment of his property, 
the old authorities and distinctions may still be material {q) , 
The principles are the same as in actions for malicious pro- 
secution, mutatis mutandis : thus an action for maliciously 
procuring the plaintiS to be adjudicated a bankrupt wUl not 
lie unless and imtil the adjudication has been set aside (r). 

Probably an action will lie for bringing and prosecuting 
an action in the name of a third person maliciously (which 
must mean from ill-will to the defendant in the action, 
and without an honest belief that the proceedings are or 
will be authorized by the nominal plcdntifi), and without 
reasonable or probable cause, whereby the party aga-inst 
whom that action is brought sustains damage ; but certainly 
such an action does not Ue without actual damage (s). 

The explanation of malice as '^improper and indirect 
motive " appears to have been introduced by the judges of 
the Song's Bench between sixty and seventy years ago. 
But " motive " is perhaps not a much clearer term. " A 
wish to injure the party rather than to vindicate the law ** 
would be more intelligible {ss). 

law it was weU setUed that an B. 4 Gal. 688. 

action might be brought for ma- (r) Metropolitan Bank y. BH>leff 

]^cioiis proceedings. (1886) 10 App. Ga. 210, 64 L. J. 

(p) Savile or SaviU Y. SoberU Q. B. 449. 

(1698) 1 Ld. Raym. 374, 379 ; 12 (•) CottsreU v. Jonei (1861) 11 

Mod. 208, 210, and also in 6 Mod., G. B. 713, 21 L. J. G. P. 2. 

Salkeld, and Garthew. (ft) Stephen (Sir Herbert) on 

{q) See Goolej on Torts, 187. As Malicions Prosecution, 36-39, see 

to British India, see ItaJ Chunder especially- at p. 37. 
Roy Y. Shama Soondari Dehi^ I. L. 

tj2 



292 WfiONGS OP FRAUD AND MALIC£. 



rV. — Other Maliciaua Wrongs. 

Oonspi- The modem aotion for malicions prosecution has taken 

^^' the place of the old writ of conspiracy and the action on 
the case grounded thereon {t)y out of which it seems to 
have developed. Whether conspiracy is known to the law 
as a substantive wrong, or in other words whether two or 
more persons can ever be joint wrong-doers, and liable to 
an aotion as such, by doing in execution of a previous 
agreement something it would not have been xmlawful for 
them to do without such agreement, is a question of mixed 
history and speculation not wholly free from doubt. It 
seems however to be now settled for practical purposes that 
the conspiracy or ** confederation '' is only matter of in- 
ducement or evidence (m). '' As a rule it is the damage 
wrongfully done, and not the conspiracy, that is the gist 
of actions on the case for conspiracy " {x). ^' In all such 
oases it will be f oimd that there existed either an ultimate 
object of malice or wrong, or wrongful means of execution 
involving elements of injury to the public, or at least 
negativing the pursuit of a lawful object " {p). Either the 
wrongful acts by which the plaintiS has suffered were sack 
as one person could not commit alone (s), say a riot, or 
they were wrongful because malicious, and the malice is 
proved by showing that they were done in execution of a 
concerted design. In the singular case of Gregory v. Duke 
qf Brunstcick (a) the action was in effect for hissing the 

(t) F. N. B. 114 D. $qq, injvaj which can ooly he effeofod 

' («) Mogul SUamthip Company t. hy the oomhinatioa of manj [per^ 

M'Qregor, *92, A. 0. 26, in H. L. soelb] " : Lord Hanaen, '92, A. G. 

(z) BowenL. J. in S. G. in G. A. at p. 60. 

(1889) 23 Q. B. Div. at p. 616. (a) 6 Man. & Or. 205, 953 (1844). 

(y) Lord Field, '92, A. 0. at The defendants jostiiied in a plea 

p. 62. which has the merit of being 

{z) '* There are some forms of amusing. 



CONSPIRACY, ETC. 293 

plaintiff off the stage of a theatre in pursuanoe of a 
malicions oonspiraoy between the defendants. The Court 
were of opinion that in point of law the oonspiraoy was 
material only as evidenoe of malice, but that in point of 
fact there was no other such evidence, and therefore the 
jury were rightly directed that without proof of it the 
plaintiff's case must fail. 

" It may be true, in point of law, that, on the declaration 
as framed, one defendant might be convicted though the 
other were acquitted ; but whether, as a matter of fact, the 
plaintiff could entitle himself to a verdict against one alone, 
is a very different question. It is to be borne in mind that 
the act of hissing in a public theatre is, prima faciei a law- 
ful act ; and even if it should be conceded that such an 
act, though done without concert with others, if done from 
a malicious motive, might furnish a ground of action, yet 
it would be very difficult to infer such a motive from the 
insulated acts of one person unconnected with others. 
Whether, on the facts capable of proof, such a case of 
malice could be made out against one of the defendants, 
as, apart from any combination between the two, would 
warrant the expectation of a verdict against the one alone, 
was for the consideration of the plaiutiff 's counsel ; and, 
when he thought proper to rest his case wholly on proof of 
conspiracy, we think the judge was well warranted in 
treating the case as one in which, unless the conspiracy 
were established, there was no ground for saying that the 
plaintiff was entitled to a verdict ; and it would have been 
unfair towards the defendants to submit it to the jury as a 
case against one of the defendants to the exclusion of the 
other, when the attention of their counsel had never been 
called to that view of the case, nor had any opportunity 
[been P J given them to advert to or to answer it. The 
case proved was, in fact, a case of conspiracy, or it was no 



394 WRONGS OF FR^UD AND MALICE. 

oase at sU on which the jury oould properly find a yerdiot 
for the plaintiff " (i). 

Soon after this oaae was dealt with by the Court of 
Common Pleas in England, the Supreme Conrt of New 
York laid it down (not without examination of the earlier 
authoritieB) that oonspiraoy is not in itself a cause of 
action (e). 

In 1889 the question was raised in a curious and 
important case in this country. The material facts may, 
perhaps, be fairly summarized, for the present purpose, as 
follows : — ^A., B., and C. were the only persons engaged 
in a certain foreign trade, and desired to keep the trade in 
their own hands. Q. threatened, and in fact commenced, 
to compete with them. A., B., and C. thereupon agreed 
to ofiFer specially favourable terms to all customers who 
would agree to deal with themselves to the exclusion of Q. 
and all other competitors outside the combination. This 
action had the effect of driving Q. out of the market in 
question, as it was intended to do. It was held by the 
majority of the Court of Appeal, and unanimously by the 
House of Lords, that A., B., and C. had done nothing 
which would have been unlawful if done by a single 
trader in his own sole interest, and that their action did not 
become unlawful by reason of being undertaken in concert 
by several persons for a common interest. The agreement 
was in restraint of trade, and oould not have been enforced 
by any of the parties if the others had refused to execute 
it, but that did not make it punishable or wrongful (d), 

[b) FerColtmanJ.^eMan. &Qt. 68 L. J. Q. B. 465 {dUa, Lord 

at p. 969. EflherM. B.) ; in H. L. '92, A. G. 

(e) Sutehim y. ffuUhini (1846) 26, 61 L. J. Q. B. 295. Lord 

7 TTfll 104, and Bigelow L. G. 207. Eslier was apparently prepared to 

See Hr. Bigelow's note thereon. hold that whenerer A. and B. 

(i) Mofful Steamship Company y. make an agreement which, as be« 

MeOregof (1889) 23 Q. B. Dir. 698, tween themaelyee, is Toid as in 



MALICIOUS HINDRANCES. 295 

It is possible, however, that an agreement of this kind 
might in some oases be held to amount to an indictable 
conspiracy on the ground of obvious and excessive public 
inconvenience {e). At the same time, even if this be ad- 
mitted, it would not be easy for a court to say beforehand 
how far any particular trade combination was likely to 
have permanently mischievous results (/). 

It would seem to follow from the principles of the Helation 
modem cases that it cannot be an actionable conspiracy ^irac^ to 
for two or more persons, by lawful means, to induce JjjJ^OTfor- 
another or others to do what they are by law free to do or i»a»noee 

11 of third 

to abstain from domg what they are not bound by law to penonB. 
do. Yet the Court of Appeal has held that procuring 
persons— not to break a contract, but — not to renew expir- 
ing contracts or make a fresh contract, may be actionable if 
done '' maliciotisly," without any allegation that intimida- 
tion or other unlawful means were used (g). It is sub- 
mitted that not even the authority of the Court of Appeal 
will make this decision coirect, and that it is not really 
consistent with the decision of the House of Lords in the 
Mogul Company's case. 

There may be other malicious injuries not capable of Malidoiu 
more specific definition ^' where a violent or malicious act j^r^^ 
is done to a man's occupation, profession, or way of getting ^^^f " 
a Uvelihood " ; as where the plaintiff is owner of a decoy tion, 

restraint of trade, and C. Buffers (e) Bowen L. J., 23 Q. B. Dir. 

damage as a proximate oonBe« at p. 618. 

qnence, A. and B. are wrongdoers (/) Fry L. J., 23 Q. B. Dir. at 

as against C. ThisiBclearljnega- p. 628. 

tived by the deoision of the House (ff) TtmperUm t. RuaseUf '93, 1 

of Lords, see the opinions of Lord Q. B. 715, 4 B. 376, 62 L. J. Q. B. 

Halsbuy L. C, Lord Watson, 412. 

Lord Bramwell and Lord Hannen. 



296 



WRONGS OF FRAUD AND MAUCE. 



for catohing wild fowl, and the defendant, without enter- 
ing on the plaintiff's land, wilfully fires off guns near to 
the decoj, and frightens wild fowl away from it (A). Not 
many examples of the kind are to be found, and this is 
natural ; for they have to be sought in a kind of obscure 
middle region where the aots complained of are neither 
wrongful in themselves as amounting to trespass against 
the plaintiff or some third person (i), nuisance (A:), or 
breach of an absolute specific duty, nor yet exempt from 
search into their motives as being done in the exercise of 
common right in the pursuit of a man's lawful occupation 
or the ordinary use of his property (/). Mere competition 
carried on for the purpose of gain, not out of actual malice, 
and not by unlawful means, such as molestation or intimi- 
dation, is not actionable, even though it be intended to 
drive a rival trader out of the field, and produce that re- 
sult (fn). ^' The policy of our law, as at present declared 
by the legislature, is against all fetters on combination and 
competition unaccompanied by violence or fraud or other 
like injurious acts " (n). Beyond generally forbidding the 
use of means unlawful in themselves, the law does not 
impose any restriction upon competition by one trader 
with another with the sole view of benefiting himself. A 
different question would arise if there were evidence of an 
intention on the defendant's part to injure the plaintiff 



(A) Carrmgton y. Tayhr (1809) 
11 East 671, 11 R. R. 270, follow- 
ingr KetbU v. EickmingiU (1705) 11 
East 673 in notit, 11 R. R. 273 ft, 
where see Holt's judgment. And 
see Lord Field's opinion in Mofful 
Steatmhip Company y. McGregor, 
'92, A. C. 26, 61, 61 L. J. Q. B. 
296. 

(•) Tarleton y. MeGawley, 1 Feake 
270, 3 R. R. yi. 689 : the defend- 



ant's aot in firing at negroes to pre- 
vent them from trading with the 
plaintiff's ship was of oonrse un- 
lawful/Mr «#. 

(At) Cp. Ibbotwn y. Peat (1866) 
3 H. & C. 644, 34 L. J. Ex. 118. 

{I) See p. 136, aboye. 

(m) Mogul Steanuhip Company y. 
McGregor, note (d), 

(n) Fry L. J., 23 Q. B. Diy. at 
p. 628. 



MALICIOUS HINDRANCES. 297 

without benefiting himself. ^'Thus, if several persons 
agree not to deal at aU with a particular individual, as this 
oould not, under ordinary oircumstanoes, benefit the persons 
so agreeing " (o). Driving a public performer off the stage 
bj marks of disapprobation which proceed not from an 
honest opinion of the demerits of his performance or per- 
son, but from private enmity, is, as we have just seen, a 
possible but doubtful instance of this sort of wrong {p). 
Holt put the case of a schoolmaster frightening away chil- 
dren from attendance at a rival school (^). It is really on contract, 
the same principle that an action has been held to lie for 
maliciously (that is, with the design of injuring the plain* 
tiff or gaining some advantage at his expense) procuring 
a third person to break his contract with the plaintiff, and 
thereby causing damage to the plaintiff (r). The precise 
extent and bearing of the doctrine are discussed in the 
final chapter of this book with reference to the difficulties 
that have been felt about it, and expressed in dissenting 
judgments and elsewhere. Those difficulties (I submit and 
shall in that place endeavour to prove) either disappear or 
are greatly reduced when the cause of action is considered 
as belonging to the class in which malice, in the sense of 
actual ill-will, is a necessary element. 

Grenerally speaking, every wilful interference with the or fran- 
exercise of a franchise is actionable without regard to the ^ 
defendant's act being done in good faith, by reason of a 
mistaken notion of duty or claim of right, or being con- 
sciously wrongful. ^' If a man hath a franchise and is 

(o) Lord Haxmen in Mogul {q) Keehle y. SickeringiU^ note 

Steanuhip Company ▼. MeOregor^ (A) last pctge. 
'92, A. C. at p. 60. (r) Lumley v. Qye (1853) 2 £. & 

(p) Gregory v. Duke of Brunt- B. 216, 22 L. J. Q. B. 463 ; 
wiekf supra, p. 292. Bowen v. Sail (1881) 6 Q. B. Diy. 

333, 60 L. J. Q. B. 305. 



298 



WRONGS OF FRAUD AXD MALICE. 



hindered in the enjoyment thereof, an action doth lie, 
which is an aotion npon the case " («). Bnt persons may 
as public officers be in a quasi-jadicial position in which 
they will not be liable for an honest though mistaken 
exercise of discretion in rejecting a vote or the like, but 
will be liable for a wilful and consmous, and in that sense 
malidouSy denial of right (Q. In such oases the wrong, if 
any, belongs to the class we have just been considering. 



Kainte« 
luuioe. 



The wrong of maintenance, or aiding a party in litiga- 
tion without either interest in the suit, or lawful cause of 
kindred, affection, or charity for aiding him, is akin to 
malicious prosecution and other abuses of legal process; 
but the ground of it is not so much an independent wrong 
as particular damage resulting from '^a wrong founded 
upon a prohibition by statute " — a series of early statutes 
said to be in affirmation of the common law — '^ which 
makes it a criminal act and a misdemeanor " (u). Hence 
it seems that a corporation cannot be guilty of mainte- 
nance {u). Actions for maintenance are in modem times 
rare though possible (x) ; and the decision of the Oourt of 
Appeal that mere charity^ with or without reasonable 
ground, is an excuse for maintaining the suit of a 
stranger (y), does not tend to encourage them. 



{t) Holt G. J. in Athby y. White 
at p. 13 of the special report first 
printed in 1887. The action was 
on the ease merelj beoaose trespass 
would not lie for the infringement 
of an inooiporeal right of that kind. 
The right to petition Parliament is 
not a franchise in the sense that 
anj elector can compel his repre* 
Bentative in the House of Commons 
to present a particular petition: 
Chafert ▼. Chldtmid, '94, 1 Q. B. 
186, 10 B. Feb. 219. 



(0 Tozer v. Child (1867) Ex. Ch. 
7 E. & B. 377, 26 L. J. Q. B. 161. 

(«) Lord Selbome, M$trop, Bank 
T. Fooley (1886) 10 App. Oa. 210, 
218, 64 L. J. Q. B. 449. 

{x) Bradlatt^hY,N0wdsffat4{lSSS) 
11 Q. B. D. 1, 62 L. J. Q. B. 454. 
As to what will amount to a com- 
mon interest in asuit so as to justify 
maintenance, Alabatter t. Samsti, 
*94, 2 Q. B. 897. 

(y) ffarris y. Britco (1886) 17 
Q. B. IHt. 504, 65 L. J. Q. B. 423. 



299 



CHAPTER IX. 

WRONGS TO POSSESSION AND PB0PEBT7. 



I. — Duties regarding Property generally. 

Evert kind of intenneddUng with anything which is the Absolute 
subject of property is a wrong unless it is either autho* m^ot 
rized by some person entitled to deal with the thing in ®*^?^ 
that particular way, or justified by authority of law, or 
(in some oases but by no means generally) excusable on 
the ground that it is done \mder a reasonable though mis- 
taken supposition of lawful title or authority. Broadly 
speaking, we touch the property of others at our peril, and 
honest mistake in acting for our own interest (a), or even 
an honest intention to act for the benefit of the true 
owner ((), will avail us nothing if we transgress. 

A man may be entitled in divers ways to deal with Title, ju- 
property moveable or immoveable, and within a wider or exoiue. ' 
narrower range. He may be an owner in possession, with 
indefinite rights of use and dominion, free to give or to 
sell, nay to waste lands or destroy chattels if such be his 
pleasure. He may be a possessor with rights either 
determined as to length of time, or undetermined though 
determinable, and of an extent which may vary from 
being hardly distinguishable from fuU dominion to being 
strictly limited to a specific purpose. It belongs to the 

(a) SoUinar, FowUr (1876) L.B. (1876) 1 Ex. D. 55, 45 L. J. Ex. 
7 H. L. 757, 44 L. J. Q. B. 169. 186 : in trover, Biori v. Bott (1874) 

(Q In trespass, Kirk t. Ortgory L. B. 9 Ex. 86, 43 L. J. Ex. 81. 



300 WEONGS TO POSSESSION AND PEOPERTY. 

law of property to tell ns what are the rights of owners 
and possessors, and by what acts in the law they may be 
oreated^^transferred, or destroyed. Again, a man may 
have the right of using property to a limited extent, and 
either to the exolusion of aU other persons besides the 
owner or possessor, or ooncnrrently with other persons, 
without himself being either owner or possessor. The 
definition of such rights belongs to that part of the law of 
property which deals with easements and profits. Again, 
he may be authorized by law, for the execution of justice 
or for purposes of public safety and convenience, or under 
exceptional conditions for the true owner's benefit, to 
interfere with property to which he has no title and does 
not make any claim. We have seen somewhat of this in 
the chapter of " General Exceptions." Again, he may be 
justified by a consent of the owner or possessor which does 
not give him any interest in the property, but merely 
excuses an act, or a series of acts, that otherwise would be 
wrongful. 8uch consent is known as a licence. 

Title Title to property, and authority to deal with property 

dependent , 

on oon- in specified ways, are commonly conferred by contract or 
in pursuance of some contract. Thus it oftentimes depends 
on the existence or on the true construction of a contract 
whether a right of property exists, or what is the extent 
of rights admitted to exist. A man obtains goods by 
fraud and sells them to another purchaser who buys in 
good faith, reasonably supposing that he is dealing with 
the true owner. The fraudulent re-seller may have made 
a contract which the original seller could have set aside, as 
against him, on the groxmd of fraud. If so, he acquires 
property in the goods, though a defeasible property, and 
the ultimate purchaser in good faith has a good title. 
But the circumstances of the fraud may have been such 



tract. 



AUTHORITY AND TITLE. 301 

that there was no true oonsent on the part of the first 
owner, no oontraot at all, and no right of property what- 
oyer, not so much as lawful possession, acquired bj the 
apparent purchaser. If so, the defrauder has not any 
lawful interest whioh he can transfer even to a person 
acting in good faith and reasonably: and the ultimate 
purchaser acquires no manner of title, and notwithstanding 
his innocence is liable as a wrong-doer (c). Principles 
essentially similar, but affected in their application, and 
not unfrequently disguised, by the complexity of our law 
of real property, hold good of dealings with land (d). 

Acts of persons dealing in good faith with an apparent Ezoep- 
owner may be, and have been, protected in various ways protection 
and to a varying extent by different systems of law. The ^^^ 
purchaser from an apparent owner may acquire, as under ?^.^^ 
the common-law rule of sales in market overt, a better title 
than his vendor had ; or, by an extension in the same line, 
the dealings of apparently authorized agents in the way of 
sale or pledge may, for the security of commenoe, have a 
special validity conferred on them, as under our Factors 
Acts (e) ; or one who has iifnocently dealt with goods 
which he is now unable to produce or restore specifically 
may be held personally excused, saving* the true owner's 
liberty to retake the goods if he can find them, and 
subject to the remedies over, if any, which may be avail- 
able under a contract of sale or a warranty for the 
person dispossessed by the true owner. Excuse of this 
kind is however rarely admitted, though much the same 

(e) Soilim y. Jbtr^(1876) L. B. (d) See Fihher v. SatDlint (1871) 

7 H. L. 757, 44 L. J. Q. B. 169 ; L. B. 7 Oh. 269» 41 L. J. Ch. 486. 

Cfimdff Y. Lindtay (1878) 3 App. Ga. (e) Consolidated bj the Factors 

469, 47 L. J Q. B. 481. Aot, 1889, 62 & 63 Tiot. o. 46. 



802 WRONGS TO POSSESSION AND PROPERTY. 

result may Bometimes be axriyed at on special teohnioal 
grounds. 

The rights It would seem that, apart from doubtful questions of 
^^reme- ^^^^ (whioh no System of law oan wholly ayoid), there 
to ihe^ ought not to be great difficulty in determining what 
oommon amounts to a wrong to property, and who is the person 
pausuoty. wTOuged. But in fact the common law does present great 
difficulties; and this because its remedies were bound, 
until a recent date, to medieval forms, and limited by 
medieval conceptions. The forms of action brought not 
Ownership but Possession to the front in accordance with 
a habit of thought which, strange as it may now seem to 
us, found the utmost difficulty in conceiving rights of 
property as having full existence or being capable of 
transfer and succession unless in dose connexion with the 
physical control of something which could be passed from 
hand to hand, or at least a part of it delivered in the 
name of the whole (/). An owner in possession was 
protected against disturbance, but the rights of an owner 
out of possession were obscure and weak. To this day it 
continues so with regard to chattels. For many purposes 
the ^'true owner" of goods is the person, and only the 
person, entitled to immediate possession. The term is a 
short and convenient one, and may be used without 
scruple, but on condition of being rightly understood. 
Begularly the oommon law protects ownership only 
through possessory rights and remedies. The reversion or 
reversionary interest of the freeholder or general owner out 
of possession is indeed well known to our authorities, and 

(/) See Mr. F. W. MaitUnd's diTerBprofit&Uecompariflonflofthe 

aitioles on ** The Seisin of Chat- mlee conoeming real and personal 

tela ' ' and ** The Mystery of Seisin," property will be found. 
L. Q. B. i. 324, ii. 481, where 



POSSESSION AND OWNERSHIP. 308 

by oonvejanoers it is regarded as a present estate or inte- 
rest. Bat when it has to be defended in a oonrt of com- 
mon lawy the forms of action treat it rather as the shadow 
cast before bj a right to i>08sess at a time still to come. 
It has been said that there is jlo doctrine of possession in 
our law. The reason of this appearance, an appearance 
capable of deceiving even learned persons, is that posses- 
sion has all but swallowed up ownership ; and the rights 
of a possessor, or one entitled to possess, have all but 
monopolized the yerj name of property. There is a com- 
mon phrase in our books that possession is prima facie 
evidence of title. It would be less intelligible at first 
sight, but not less correct, to saj that in the developed 
system of common law pleading and procedure, as it 
existed down to the middle of this century, proof of title 
was material only as evidence of a right to possess. And 
it must be remembered that although forms of action are 
no longer with us, causes of action are what they were, 
and cases may still occur where it is needful to go back to 
the vanished form as the witness and measure of subsist- 
ing rights. The sweeping protection given to rights of 
property at this day is made up by a number of theoreti- 
cally distinct causes of action. The disturbed possessor 
had his action of trespass (in some special cases replevin) ; 
if at the time of the wrong done the person entitled to 
possess was not in actual legal possession, his remedy was 
detinue, or, in the developed system, trover. An owner 
who had neither possession nor the immediate right to 
possession could redress himself by a special action on the 
case, which did not acquire any technical name. 

Notwithstanding first appearances, then, the common Poaaession 
law has a theory of possession, and a highly elaborated one. teation. 



304 WRONGS TO POSSESSION AND PROPERTT. 

To disoosB it fully would not be appropriate here {g) ; but 
we have to bear in mind that it must be known who is in 
legal poaseaaion of any given subjeot of property, and who 
ia entitled to poaaeaa it, before we can tell what wronga 
are capable of being oommitted, and againat whom, by 
the peraon having phyaioal control over it, or bj othera. 
Legal poaaeaaion doee not neoeaaarily ooinoide either with 
actual ph jaioal control or the preaent power thereof (the 
<< detention " of Continental terminology), or with the right 
to poaaeaa (conatantly called ^' property " in our hooka) ; 
and it need not have a rightful origin. Thi aeparation of 
detention, poaaeaaion in the atriot aenae, and the right to 
poaaeaa, ia both posaible and frequent. A. lenda a book to 
B., gratuitoualy and not for any fixed time, «nd B. givea 
the book to hia aervant to carry home. Here B.'a aervant 
haa phyaical poaaeaaion, better named cuatody or detention, 
but neither legal poaaeaaion (h) nor the right to poaaeaa ; 
B. has legal and rightful poaaeaaion, and the right to 
poaaeaa aa againat every one but A. ; while A. haa not 
poaaeaaion, but haa a right to poaaeaa which he can make 
abaolute at any moment by determining the bailment to 
B., and which the law regards for many purpoaea aa if 
it were already absolute. Aa to an actual legal poaaeaaion 
(beaidea and beyond mere detention) being acquired by 
wrong, the wrongful change of poaaeaaion waa the very 
aubatance of diaaeiain aa to land, and ia atill the very aub- 
atance of treapaaa by taking and carrying away goods {de 



(^) See ''AnEflsayonPoaseflrion a stranger; see Moort y. Robinmm 

intheCknnmon Law" hj Mr. (now (1831), 2 B. & Ad. 817. The law 

Justioe} R. S. Wright and the about the custody of servants and 

preaent writer (Oxford : Clarendon persons in a like position has 

Press, 1888). yaoillated from time to time, and 

(A) Yet it is not certain that he has never been defined as a whole* 
could not maintain trespass against 



CUSTODY JUNB POSSESSION. 



305 



bonis (utportatis)^ and as suoh it wajs and is a neoessary 
oondition of the offence of laroeny at common law. 

The common law, when it must choose between denjring 
legal possession to the person apparently in possession, and 
attributing it to a wrong-doer, generallj prefers the latter 
course. In Roman law there is no such general tendency, 
though the results are often similar (i). 

Trespass is the wrongful disturbance of another person's Trespass 
possession of land {J) or goods. Therefore it cannot be ^gi^' 
committed by a person who is himself in possession {k) } 
though in certain exceptional cases a diBpimishable or even 
a rightful possessor of goods may by his own act, during a 
continuous physical control, make himself a mere tres- 
passer. But a possessor may do wrong in other ways. 
He may commit waste as to the land he holds, or he may 
become liable to an action of ejectment by holding over 
after his title or interest is detennined. As to goods he 
may detain them without right after it has become his 
duty to return them, or he may convert them to his own 
use, a phrase of which the scope has been greatly extended 
in the modem law. Thus we have two kinds of duty, 
namely to refrain from meddling with what is lawfully 
possessed by another, and to refrain from abusing posses- 
sion which we have lawfully gotten imder a limited title ; 



(f) Op. HoUand, « Elements of 
Jniispmdeiioe," 6th ed. pp. 170 — 
179. 

(J) Varmerly it was said that 
trespass to land was a disturhanoe 
not amounting to disseisin, thongh 
it might be ** yicina disseisinaei" 
which is explained bj ** si ad oom- 
modtim nti non poesit." Bracton, 
fo. 217 a. I do not think this dis- 
tinotion was regarded in an j later 

P. 



period, or was ever attempted as to 
goods. 

{k) J?.^., a mortgagee of chattels 
who has taken possession cannot 
commit a trespass hj remoTing the 
goods, although the mortgagor 
ma7 meanwhile haye tendered the 
amoimt due: Johnton y. Diprote, 
'93, 1 Q. B. 612, 62 L. J. Q. B. 
291, 4 R. 291, 0. A. 



306 WBONGS TO POSSESSION AND PBOPEBTY. 

and the breach of these produoes distinot kindci of wrong, 
having, in the old sjetem of the oonunon law, their 
distinot and appropriate remedies. But a striot observanoe 
of these distinctions in practice would have led to intoler- 
able results, and a working margin was given by beneficent 
fictions which (like most indirect and gradual reforms) 
extended the usefulness of the law at the cost of making it 
intricate and difficult to understand. On the one hand the 
remedies of an actual possessor were freelj accorded to 
persons who had only the right to possess (/) ; on the other 
hand the person wronged was constantlj allowed at his 
option to proceed against a mere trespasser as if the tres- 
passer had onl J abused a lawful or at any rate excusable 
possession. 

Alterna- In the later history of common law pleading trespass 
dies. and conversion became largely though not wholly inter* 

changeable. Detinue, the older form of action for the 
recovery of chattels, was not abolished, but it was generally 
preferable to treat the detention as a conversion and sue in 
trover (m), so that trover practically superseded detinue, as 
the writ of right and the various assizes, the older and 
once the only proper remedies whereby a freeholder could 
recover possession of the land, were superseded by eject- 
ment, a remedy at first introduced merely for the protec- 
tion of leasehold interests. With all their artificial exten- 
sions these forms of action did not completely suffice. 
There might still be circumstances in which a special action 
on the case was required. And these complications cannot 

{I) See Smith y. MiUei (1786), 1 oertain oases, e.g. on an exeontor, 

T. R. 476, 480, and note that * * oon- independently of any physioal ap- 

stmotiYe possession," as nsed in our prehension or transfer; (iiL) an 

books, includes (1.) possession exer- immediate right to possess, which 

oised through a serrant or licensee ; is distinot from actual possesaon. 

(ii.) possession conferred by law, in (m) Blaokst. iii. 152. 



WHAT IS TRESPASS. 807 

be said to be eyen now wholly obsolete. For exceptional 
oiionmstaaoes may still occur in which it is doubtful 
whether an action lies without proof of actual damage, or, 
assuming that the plaintiS is entitled to judgment, whether 
that judgment shall be for the value of the goods wrong- 
fullj dealt with or only for his actual damage, which may 
be a nominal sum. Under such conditions we have to go 
back to the old forms and see what the appropriate action 
would have been. This is not a desirable state of the 
law (n), but while it exists we must take account of it. 

n. — Treyma. 

Trespass may be committed by yarious kinds of acts, of What 
whioh the most obyiom are entry on another's land (tres. ^^ 
pass qtiare clausum fregit)^ and taking another's goods ^^^e^P*""- 
(trespass de bonis asportatis) (o). Notwithstanding that 
trespasses punishable in the king's court were said to be 
vi et armiSf and were supposed to be punishable as a breach 
of the king's peace, neither the use of force, nor the break- 
ing of an inclosure or transgression of a visible boundary, 
nor even an unlawful intention, is necessary to constitute an 
actionable trespass. It is likewise immaterial, in strict- 
ness of law, whether there be any actual damage or not. 
" Every invasion of private pr operty, be it ever so minute^ 
is a trespass '' ( j?) . There is no doubt that if one walks across 
a stubble field without lawful authority or the occupier's 
leave, one is technically a trespasser, and it may be doubted 

(fi) See per Thedger L. J.» 4 Ex. tenant for jeaxa or other interest 

Div. 199. not freehold. 

(0) The exact parallel to tres- {p) Entiek y. Carrinffton, 19 St. 

-pass de bonit asportatis IB of QoaiBe Tr. 1066. <* Property" here, aa 

not trespasB qu. cl. fr, simply, bnt constantlj in our books, really 

trespass amoimting to a disseisiii means possession or a right to pos- 

of tiie freeholder or ouster of the sessioD. 

x2 



308 WRONGS TO POSSESSION AND PfiOPEBTT. 

whether persons who roam about common lands, not being 
in exeroise of some particular right, are in a better 
position. It may be that, where the public enjoyment of 
such lands for sporting or other recreation is notorious, for 
example on Dartmoor (^), a licence (as to which more 
presently) would be implied. Oftentimes warnings or 
requests are addressed to the public to abstain from going 
on some specified part of open land or private ways, or 
from doing injurious acts. In such cases there seems to 
be a general licence to use the land or ways in conformity 
with the owner's will thus expressed. But even so, persons 
using the land are no more than '' bare licensees," and 
their right is of the slenderest. Loitering on a highway, 
not for the purpose of using it as a highway, but for the 
purpose of annoying the owner of the soil in his lawful 
use of the adjacent land, may be a trespass against that 
owner (r). 

(^taer0 It has been doubted whether it is a trespass to pass over 

i^^™' land without touching the soil, aa one may in a balloon, 
balloons ^^ ^^ cause a material object, aa shot fired from a gun, to 
pass over it. Lord Ellenborough thought it was not 
in itself a trespass ** to interfere with the column of air 
superincumbent on the close," and that the remedy would 
be by action on the case for any actual damage : though 
he had no difficulty in holding that a man is a trespasser 
who fires a gun on his own land so that the shot fall on his 
neighbour's land («). Fifty years later Lord Blackburn 
inclined to think differently (^), and his opinion seems 

{q) Asamatterof fact, the Dart- (<) Pickering y. Rudd (1815) 4 

moor hant has an express licence Camp. 219, 221, 16 R. B. 777. 

from the Duchjr of GomwaU. (t) Kenyon y. Hart (1865) 6 B. 

(r) Harriton v. Duke of Rutland, k 8. 249, 262, 34 L. J. M. C. 87 ; 

'93, 1 Q. B. 142, 62 L. J. Q. B. and see per Fry L. J. in Wande- 

117, 4 R. 166, C. A. %corth Board of JForkt y. United 



WHAT IS TRESPASS. 309 

the better. Clearly there can be a wrongful entry on land 
below the surface, as by mining, and in fact this kind of 
trespass is rather prominent in our modem books. It does 
not seem possible on the principles of the common law to 
assign any reason why an entry at any height above the 
surface should not also be a trespass. The improbability 
of actual damage may be an excellent practical reason for 
not suing a man who sails over one's land in a balloon ; 
but this appears irrelevant to the pure legal theory. Tres- 
passes clearly devoid of legal excuse are committed every 
day on the surface itself, and yet ore of so harmless a kind 
that no reasonable occupier would or does take any notice 
of them. Then one can hardly doubt that it might be a 
nuisance, apart from any definite damage, to keep a 
balloon hovering over another man's land : but if it is not 
a trespass in law to have the balloon there at all, one does 
not see how a continuing trespass is to be committed by 
keeping it there. Again, it would be strange if we could 
object to shots being fired across our land only in the event 
of actual injury being caused, and the passage of the 
foreign body in the air above our soil being thus a mere 
incident in a distinct trespass to person or property. The 
doctrine suggested by Lord Ellenborough's dictum, if 
generally accepted and acted on, would so far be for the 
benefit of the public service that the existence of a right of 
'^ innocent passage" for projectiles over the heads and 
lands of the Queen's subjects would increase the somewhat 
limited facilities of the land forces for musketry and 
artillery practice at long ranges. But we are not aware 
that such a right has in fact been claimed or exercised. 

Trespass by a man's cattle is dealt with exactly like 
trespass by himself ; but in the modem view of the law 

Tekphone Co. (1884) 13 Q. B. Diy. where staiatoxy interests in land 
904, 921 f 63 L. J. Q. B. 449. It are conferred for special purposes, 
• maj be otherwisei as in that oaaet 



310 



WBONOS TO POSSESSION AND PROPERTY. 



Trespass 
togoodB, 



this IB only part of a more general rule or bod j of ndeB 
imposing an exoeptionallj strict and imqoalified dutj of 
safe oustodj on grounds of public expedienoy. In that 
connexion we shall accordingly return to the subject (u). 

Encroachment under or aboye ground bj the natural 
growth of roots or branches of a tree standing in adJ6U)ent 
land is not a trespass, though it may be a nuisance (c). 

Trespass to goods may be committed by taking posses- 
sion of them, or by any other act ^' in itself immediately 
injurious'' to the goods in respect of the possessor's 
interest (ar), as by killing (y), beating («), or chasing (a) 
animals, or defacing a work of art. Where the possession 
is changed the trespass is an asportation (from the old form 
of pleading, cepit et asportavit for inanimate chattels, 
abdtixit for animals), and may amount to the offence of 
theft. Other trespasses to goods may be criminal offences 
under the head of malicious injury to property. The 
current but doubtful doctrine of the civil trespass being 
'^ merged in the felony " when the trespass is felonious has 
been considered in an earlier chapter (6). Authority, so 
far as known to the present writer, does not clearly show 
whether it is in strictness a trespass merely to lay hands on 
another's chattel without either dispossession {c) or actual 
damage. By the analogy of trespass to land it seems that 
it must be so. There is no doubt that the least actual 
damage would be enough (cC), And cases are conceivable 



(ti) Chapter XII. below. 

\v) Lemmon r. Webb, '94, 3 Oh. 1, 
7 R. July, 111, affd. in H. L. 
Nov. 27, 1894. 

{x) Blackst. iii. 153. 

(y) Wright v, Samseot, 1 Saund. 
83, 1 Wms. Saund. 108 (txespass 
for killing a mastiff). 

{z) Land v. Sexton, 3 T. R. 37 
(treepaas vi et armisior beating the 
plaintiff's dog). 



(a) A form of writ is given for 
chaffing the plaintiff's sheep with 
dogs, F. N. B. 90 L. ; so for 
shearing the plaintiff's sheep, ib. 
87 a. 

(b) P. 185, above. 

{c) See Oat/lard v. Jforrit (1849) 
3 Ex. 695, 18 L. J. Ex. 297. 

(d) * ' Scratohing the panel of a 
caiiiage would be a trespass," 
Alderson B. in Faukht v. JFU» 



INJUEIES TO BEVEBSION. 



811 



in which the power of treating a mere unauthorized touch- 
ing as a trespass might be salutary and necessary, as where 
valuable objects are exhibited in places either public or 
open to a large class of persons. In the old precedents 
trespass to goods hardly occurs except in conjunction with 
trespass to land {e). 



HE. — Injuries to JRetfersion. 

A person in possession of property may do wrong by Wwmgeto 
refusing to deliver possession to a person. entitled, or by notinpos- 
otherwise assuming to deal with the property as owner or ■®""°^ 
adversely to the true owner, or by dealing with it under 
colour of his real possessory title but in excess of his rights, 
or, where the nature of the object admits of it, by acts 
amounting to destruction or total change of character, 
such as breaking up land by opening mines, burning 
wood, grinding com, or spinning cotton into yam, which 
acts however are only the extreme exercise of assumed 
dominion. The law started from entirely distinct con- 
ceptions of the mere detaining of property from the person 
entitled, and the spoiling or altering it to the prejudice of 
one in reversion or remainder, or a general owner (/) . For 
the former case the common law provided its most ancient 
remedies — the writ of right (and later the various assizes and 
the writ of entry) for land, and the parallel writ of detinue 
(parallel as being merely a variation of the writ of debt, 
which was precisely similar in form to the writ of right) 



hughhy^ 8 M. & W. 649. In Kirh 
Y. Gregory (1876) 1 Ex. D. 65, the 
trespass oomplained of was almost 
nominal, bat there was a oomplete 
asportation while the intermeddling 
lasted. 

(«) See F. K. B. 86-88, poMtm. 

(/) Astotheterm'^reyersionarj 
interest" applied to goods, cp. 



Dicey on Parties, 345. In one 
way <* reversioner" would be more 
correct than '' owner " or ** general 
owner," for the person entitled to 
sne in troyer or prosecute for theft 
is not necessarily dominus^ and the 
dominus of the chattel may be dis- 
qualified from BO suing or prose- 
cuting. 



312 



WRONOS TO POSSESSION AND PROPERTY. 



for goods; to this must be added, in spedal, but onoe 
frequent and important oases, replevin {g). For the latter 
the writ of waste (as extended bj the Statutes of Marl-^ 
bridge and Gloucester) was available as to land ; later this 
was supplanted by an aotion on the case {h) '' in the 
nature of waste/' and in modem times the power and 
remedies of courts of equity have been found still more 
e£Fectual (t). The process of devising a practical remedy 
for owners of chattels was more circuitous; they were 
helped by an action on the case which became a distinct 
species imder the name of trover, derived from the usual 
though not necessary form of pleading, which alleged that 
the defendant found the plaintiff's goods and converted 
them to his own use (k). The original notion of canperaion 
in personal chattels answers closely to that of waste in 
tenements; but it was soon extended so as to cover the 
whole ground of detinue (/), and largely overlap trespass; 



( ff) It seems useless to saj more 
of replevin here. The carious 
reader ma.j oonsult Ifennis r. Blake 
(1866) 6 E. &B. 842, 25 L. J. Q. 
B. 399. For the earliest form 
of writ of entry see Close Bolls, 
Yol. i. p. 32. Blackstone is wrong 
in stating it to have been older 
than the assizes. 

(A) Under certain conditions 
waste might amount to trespass, 
Litt. 8. 71, see more in sect. vii. of 
the present chapter. 

(t) For the history and old law, 
see Go. Litt. 63, 64; Blackst. ii. 
281, iii. 226; notes to Greene y. 
Cole, 2 Wms. Saond. 644 ; and 
Woodhouee v. Walker (1880), 6 Q. B. 
D. 404. The action of waste proper 
conld be brought only " by him 
that hath the immediate estate of 
inheritance," Co. latt. 63 a. 



(k) Blackst. iU. 162, cf. the 
judgment of Martin B. in Bwt' 
rmtghea y. Bayne (1860) 6 H. & K. 
296, 29 L. J. Ex. 186, 188; and as 
to the forms of pleading, Bro. Ab. 
Accion sur le Case, 103, 109, 113, 
and see Littleton's remark in 38 
H. YL, 27, pi. 12, an action of 
detinue where a finding by the de- 
fendant was alleged, that '* thia 
declaration per inventionetn is a new 
found Haliday " ; the case is trans- 
lated by Mr. Justice Wright in 
Pollock and Wright on Possession, 
174. 

(/) Martin B., /. e,^ whose phrase 
" in yery andent times'* is a little 
misleading, for troyer, as a settled 
common form, seems to date only 
from the 16th century; Beeyea 
Hist. Eng. L. iy. 626. 



WASTE. 813 

a mere trespasser whose acts would have amoimted to 
conversion if done bj a lawful possessor not being allowed 
to take exception to the true owner " waiving the trespass," 
and professing to assume in the defendant's favour that 
hiB possession had a lawful origin. 

TV.— Waste. 

Waste is any unauthorized act of a tenant for a freehold Waste, 
estate not of inheritance, or for anj lesser interest, which 
tends to the destruction of the tenement, or otherwise to 
the injury of the inheritance. Such injury need not con- 
sist in loss of market value ; an alteration not otherwise 
mischievous may be waste in that it throws doubt on the 
identification of the property, and thereby impairs the 
evidence of title. It is said that every conversion of land 
from one species to another — as ploughing up woodland, 
or turning arable into pasture land — ^is weuste, and it has 
even been said that building a new house is waste (m). 
But modem authority does not bear this out ; '^ in order 
ito prove waste you must prove an injury to the inherit- 
ance " either " in the sense of value " or " in the sense 
of destroying identity" (n). And in the United States, 
especially the Western States, many acts are held to be 
only in a natural and reasonable way of using and im- 
proving the land — clearing wild woods for example — 
which in England, or even in the Eajstem States, would 
be manifest waste (o). As to permissive weuste, i.e.y suffer- 
ing the tenement to lose its value or go to ruin for want of 
necessary repair, a tenant for life or years is liable therefor 
if an express duty to repair is imposed upon him by the 

(im) ''If the tenant build anew (n) Jonet y. ChappeU (1875) 20 

houBe, it is waste ; and if he snffer Eq. 539, 540-2 (Jessel H. B.) ; 
it to be wasted, it is a new waste." Mews y. Cobley, '92, 2 Ch. 253, 61 
Go. litt. 58 a. L. J. Ch. 449. 

(o) Oooley on Torts, 338. 



314 



WSONGSI TO POSSESSION AND PBOPEBTT. 



instrument oreating his estate ; otherwifle he is not {p). It 
seems that it oan in no ease be waste to nse a tenement in 
an apparently reasonable and proper manner, '' having 
regard to its oharaoter and to the purposes for whidi it 
was intended to be used" (;), whatever the actual oon- 
sequenoes of suoh nser may be. Where a partioular course 
of user has been carried on for a considerable course of time, 
with the apparent knowledge and assent of the owner of 
the inheritance^ the Court will make aU reasonable pre- 
sumptions in favour of referring acts so done to a lawful 
origin (r). Destructive waste bj a tenant at will may 
amount to trespass, in the strict sense, against the lessor. 
The reason will be more convenientlj explained here- 
after («). 



Modem 
law of 
waste: 
tenants for 
life. 



In modem practice, questions of waste arise either 
between a tenant for life (/) and those in remainder, or 
between landlord and tenant. In the former case, the 
unauthorized cutting of timber is the most usual gronnd 
of complaint ; in the latter, the forms of misuse or neglect 
are as various as the uses, agricultural, conmiercial, or 
manufacturing, for which the tenement maj be let and 
occupied. With regard to timber, it is to be observed 



(p) Re Cartwrightj Avit v. New^ 
man (1889) 41 Ch. D. 632, 68 
L. J. Ch. 600. An equitable 
tenant for life ia not liable for 
permiflsiye waste: Fowyt y. Bkt- 
grave (1854) 4 D. H. G. 448 ; Re 
HoUhleyt, Freke ▼. Caknady (1886) 
32 Ch. D. 408, 65 L. J. Ch. 646. 

(g) Mancheiter Bonded JTarehoute 
Co. V. Cfarr (1880) 5 C. P. D. 607, 
612, 49 L. J. C. P. 809 ; foUowing 
Saner y. BiUm (1878) 7 Ch. D. 816, 
821, 47 L. J. Ch. 267 ; cp. Job v. 
Fotton (1875) 20 Eq. 84, 44 L. J. 



Ch. 262. 

(r) Eliae ▼. Snotvdon Slate Qwir^ 
riee Co, (1879) 4 App. Ca. 454, 465, 
48 L. J. Ch. 811. 

(«) See below in sect. -vlL of this 
chapter. 

(Q In the United States, where 
tenancy in dower is still common, 
there are manj modem decisions 
on questions of waste arising ontof 
such tenancies. See Cooley on Torts 
333, or Sorifaner on Dower (2nd ed. 
1883) i. 212—214 ; U. 795 9qq. 



WASTE, 



315 



that there are ^' timber estates " on which wood is grown 
for the purpose of periodical cutting and BaLe, so that 
<< cutting the timber is the mode of cultivation " (u). On 
such land cutting the timber is equivalent to taking a 
crop off arable land, and if done in the usual course is notl 
waste. A tenant for life whose estate is expressed to 
be without impeachment of waste may freely take timber 
and minerals for use, but, unless with further specific 
authority, he must not remove timber planted for orna- 
ment (save so far as the cutting of part is required for the 
preservation of the rest) (;r) open a mine in a garden or 
pleasure-ground, or do like acts destructive to the indi« 
vidual character and amenity of the dwelling-place (y). 
The commission of such waste may be restrained by in- 
junction, without regard to pecuniary damage to the 
inheritance : but, when it is once committed, the normal 
measure of damages can only be the actual loss of value (2). 
Further details on the subject would not be appropriate 
here. They belong rather to the law of Eeal Property. 



As between landlord and tenant the real matter in Landlord 
dispute, in a case of alleged waste, is commonly the extent tenant. 



(if) Ab to the c^eral law con- 
oeming timber, and its possible 
variation hy local onstom, see the 
judgment of Jessel M. B., JSTony- 
wood y. Honywood (1874) 18 Eq. 
306, 309, 43 L. J. Ch. 652, and 
J)(uhufood Y. Magniae, '91, 3 Ch. 
806, 60 L. J. Ch. 809, G. A. 

{x) See Baher y. S^righi (1879) 
13 Ch. D. 179, 49 L. J. Ch. 66 ; 
bnt it seems that a remainderman 
coming in time wonld be entitled 
to the supervision of the Court in 
«uch case ; 13 Ch. D. at p. 188. 



(y) Waste of this kind was known 
as '* equitable waste," the oommis- 
sion of it hj a tenant unimpeach- 
able for waste not being treated as 
wrongful at common law ; see now 
36 & 37 Vict. o. 66 (the Supreme 
Court of Judicature Act, 1873), 
B. 26, sub-B. 8. 

(c) Bubb v. TelverUm (1870) 10 
Eq. 465. Here the tenant for life 
had acted in good faith under the 
belief that he was improving the 
property. Wanton acts of destnio- 
tion would be very differently 
treated. 



816 



WROKOS TO POSgESSIOK AND PBOPEBTT. 



of the tenant's obligation, under his express or implied 
oovenants, to keep the property demised in safe condition 
or repair. Yet the wrong of waste is none the less com- 
mitted (and under the old procedure was no less remedi- 
able bj the appropriate action on the case) because it is 
also a breach of the tenant's contract (a). Since the 
Judicature Acts it is impossible to say whether an action 
alleging misuse of the tenement by a lessee is brought on 
the contract or as for a tort (b) : doubtless it would be 
treated as an action of contract if it became necessary for 
any purpose to assign it to one or the other dass. 



V. — Convermn. 

Gonver- i Conversion, according to recent authority, may be de- 

tion of I scribed as the wrong done by '' an imauthorized act which 

SS^ I deprives another of his property permanently or for an 

I indefinite time " {c). Such an act may or may not include 

a trespass ; whether it does or not is immaterial as regards 

the right of the plainti£F in a civil action, for even under 

the old forms he might ^' waive the trespass " ; though as 

regards the possibility of the wrong-doer being criminally 

liable it may still be a vital question, trespass by taking 

and carrying away the goods being a necessary element in 

the offence of larceny at common law. But the definition 

of theft (in the first instance narrow but strictly consistent, 

afterwards complicated by some judicial refinements and 

by numerous imsystematic statutory additions) does not 

concern us here. The " property " of which the plaintiff 



(a) 2 Wms. Saimd. 646. 

(A) E.g. TueJary. Linger (1882) 
21 Ch. Diy. 18, 61 L. J. Ch. 713. 

{o) BramweU B., adopting tlie 
expreouon of Boflanquet, arg.^ 
Miort y. Bait (1874) L. B. 9 Ex. 



86, 89, 43 L. J. Ex. 81. AH, or 
nearly all, the learning on the sub- 
jeot down to 1871 Ib collected (in a 
somewhat fonnlees manner it must 
be allowed) in the notes to WHbra' 
ham T. 8now^ 2 Wms. Sannd. 87. 



CONVERSION^ 317 

is deprived — ^the subject-matter of the right which is 
yiolated — ^most be something which he has the immediate 
right to possess ; only on this condition could one main- 
tain the action of trover under the old forms. Thus, » 
where goods had been sold and remained in the vendor's 
possession subject to the vendor's lien for unpaid purchase- \ 
money J the purchaser could not bring an action of trover I 
against a stranger who removed the goods, at all events^ 
without payment or tender of the unpaid balance (</). | 

But an owner not entitled to immediate possession 
might have a q>ecial action on the case, not being trover, 
for any permanent injury to his interest, though the 
wrongful act might also be a trespass, conversion, or 
breach of contract as against the immediate possessor (e)^ 
As under the Judicature Acts the difference of form 
between trover and a special action which is not trover does 
not exist, there seems to be no good reason why the idea 
and the name of conversion should not be extended to 
cover these last*mentioned cases. 



On the other hand, the name has been thought alto- What 
gether objectionable by considerable authorities (/) : and to oonyer- 
certainly the natural 'meaning of converting property to 
one's own use has long been left behind. It came to be 
seen that the actual diversion of the benefit arising from 
use and possession was only one aspect of the wrong, and 
not a constant one. It did not matter to the plaintiff 
whether it was the defendant, or a third person taJking 



Bion. 



(d) Lord V. Friee (1874) L. B. 9 Coupd Co. t. Maddiok, '91, 2 Q. B. 
Ex. 54, 48 L. J. Ex. 49. 413, 60 L. J. Q. B. 676, which 

(e) Mean t. X. ^ S. W. S. Co. aasmnes that a bailor for a temi 
(1862) 11 C. B. N. S. 860, 31 L. J. has no remedy against a stranger 
G. P. 220. This appears to have who injures the chattel. 

been overlooked in the reasoning if (/) See 2 Wms. Saond. 108, and 

not in the decision of the Court in . per BramweU L. J., 4 Ex. D. 194. 



ai8 



WBOKGS TO POSSESSION AND PBOPEBIT. 



deliveiy from the defendant, who used hiB goods, or 
whether they were used at all ; the essenoe of the injury 
was that the use and possession were dealt with in a 
manner adverse to the plaintiff and inconsistent with his 
right of dominion. 

The grievanoe is the unauthorized assumption of the 
powers of the true owner. Actually dealing with another's 
goods as owner for however short a time and however 
f limited a purpose {g) is therefore conversion ; so is an act 
which in fact enables a third person to deal with them as 
owner, and which would make such dealing lawful only if 
done by the person really entitled to possess the goods (A). 
It makes no difference that such acts were done under a 
mistaken but honest and even reasonable supposition of 
being lawfully entitled (^), or even with the intention of 
benefiting the true owner (A) ; nor is a servant, or other 
merely ministerial agent, excused for assuming the do- 
minion of goods on his master's or principal's behalf, 
though he " acted under an unavoidable ignorance and for 
his master's benefit" {%), It is common learning that a 
refusal to deliver possession to the true owner on demand 
is evidence of a conversion, but evidence only {k) ; that is, 
one natural inference if I hold a thing and will not deliver 
it to the owner is that I repudiate his ownership and mean 
to exercise dominion in despite of his title either on my own 
behalf or on some other claimant's. ^^ If the refusal is in 



{g) HoUim y. Fowler (1876) L. B. 
7 H. L. 767, 44 L. J. Q. B. 169. 
Gashing a bill in gfood faith on a 
f orgfed indorsement is a conYersion : 
KUinwort y. Comptoir d*Eteompt€f 
»94, 10 B. Jnly, 277. 

(A) Eiwt Y. BoH^ L. B. 9 Ex. 86, 
43 L. J. Ex. 81. 

(i) Sttphma Y. EUoaU (1816) 4 
M. & S. 269, 16 B. B. 468 ; ad- 



mitted to be good law in ffoUinsY, 
Fotcler, L. B. 7 H. L. at pp. 769, 
796, and followed in Barker y. 
FwrUmg, »91, 2 Ch. 172, 60 L. J. 
Gh. 368. Gp. Fine Art Society y. 
Unum Bank of London (1886) 17 
Q. B. DiY. 706, 66 L. J. Q. B. 70. 
{k) Balme y. Sutton, Ex. Gh. 
(1833) 9 Bing. 471, 476. 



EVIDENGE OF OONYEBSIOH. /' 3191 

disregard of the plaintijS's title, and for the pmpoBe of 
daiming the goods either for the defendant or for a third 
person, it is a oonyersion" (/). But this is not the only 
possible inference and may not be the right one. The 
refusal may be a qualified and provisional one : the pos- 
sessor may say, '^ I am willing to do right, but that I may 
be sure I am doing right, give me reasonable proof that 
you are the true owner " : and such a possessor, even if 
over-oautious in the amount of satisfaction he requires, 
can hardly be said to repudiate the true owner's claim (m). 
Or a servant having the mere custody of goods under the 
possession of his master as bailee — say the servant of a 
warehouseman having the key of the warehouse — may 
reasonably and justifiably say to the bailor demanding his 
goods: "I cannot deliver them without my master's 
order " ; and this is no conversion. '^ An unqualified re- 
fusal is almost always conclusive evidence of a conversion ; 
but if there be a qualification annexed to it, the question 
then is whether it be a reasonable one " (n). Again there 
may be a wrongful dealing with goods, not under an 
adverse claim, but to avoid having anything to do with 
them or with their owner. Where a dispute arises between 
the master of a ferryboat and a passenger, and the master 
refuses to carry the passenger and puts his goods on shore, 
this may be a trespass, but it is not of itself a conver- 
sion (o). This seems of little importance in modem prac- 
tice, but we shall see that it might still aiSect the measure 
of damages. 
In many cases the refusal to deliver on demand not only 

(/) Opmion of Blackbnm J. m (n) Alexander y. Southey (1821) 5 

HoUins V. Fowler^ L. B. 7 H. L. B. & A. 247, per Beet J. at p. 250. 

at p. 766. (0) Fouldea y, WiUoughby, 8 M. & 

{m) See Bttrroughee t. Bayne W. 540 ; cp. Wilson t. MeLaughUn 

(1860) 5 H. ft N. 296, 29 L. J. Ex. (1871) 107 Haas. 587. 
185, 188, eupra^ p. 812. 



820 



WBONGS TO POSSESSION AND PB0PERT7. 



proYos but oonstitates the oonyersion. When this is so, 
the Statute of Lixnitation runs £rom the date of the refusal, 
without regard to any prior act of oonversion hj a third 
person {p). 

By a oonversion the true owner is, in oontemplation of 
law, totally deprived of his goods ; therefore, except in a 
few very special oases (9), the measure of damages in an 
action of trover was the full value of the goods, and by a 
satisfied judgment (r) for the plaintiff the property in the 
goods, if they still existed in speciey was transferred to the 
defendant. 

Acts not The mere assertion of a pretended right to deal with 

Amount* , , , 

ing to oon- goods or threatening to prevent the owner from dealing with 
^^*™*^' them IB not oonversion, though it may perhaps be a cause of 
action, if special damage can be shown («) ; indeed it is 
doubtful whether a person not already in possession can 
oommit the wrong of conversion by any act of interference 
limited to a special purpose and falling short of a total 
assumption of dominion against the true owner (^). An 
attempted sale of goods which does not affect the property, 
the seller having no title and the sale not being in market 
overt, nor yet the possession, there being no delivery, is 
not a oonversion. If undertaken in good faith, it would 
seem not to be actionable at all ; otherwise it might come 



{p) MUUr T. DtU, '91, 1 Q. B. 
468, 60 L. J. Q. B. 404, 0. A. 

(q) See per BramweU L. J., 8 
Q. B. D. 490 ; Eiort^, L.^N, W. 
J2. Co. (1879) 4 Ex. Diy. 188, 48 
L. J. Ex. 646, where howerer 
BramweU L. J. wae the only 
member of the Court who was olear 
that there was any oonyersion at 
all. 



(r) Not by judgment without 
satisfaction; Ex parte Drak4 (1^11) 
6 Ch. Diy. 866, 46 L. J. Bk. 29 ; 
following BrinnMod y. Sarriton 
(1871) L. B. 6 0. P. 684, 40 L. J. 
C. P. 281. 

(«) England y. CowUy (1873) L. 
B. 8 Ex. 126, see per EeUy G. B. 
at p. 132, 42 L. J. Ex. 80. 

(t) See per BramweU B. and 
Kelly C. B. t^. 131, 132. 



CONVERSION UNDER MISTAKE. 



SZl 



within the analogy of slander of title. But if a wrongful 
sale is followed up by delivery, both the seller (u) and the 
buyer (x) are guilty of a conversion. Again, a mere col- 
lateral breach of contract in dealing with goods entrusted 
to one is not a conversion ; as where the master of a ship 
would not sign a bill of lading except with special terms 
which he had no right to require, but took the cargo to 
the proper port and was willing to deliver it, on payment 
of freight, to the proper consignee {y). 



\ 



A merely ministerial dealing with goods, at the request Dealings 
of an apparent owner having the actual control of them, aathority 
appears not to be conversion (s) ; but the extent of this ^i^' 
limitation or exception is not precisely defined. The point owner, 
is handled in the opinion delivered to the House of Lords 
in nollim v. FowlerA a) by Lord Blackburn, then a ^ 
Justice of the Queen's Bench ; an opinion which gives in 
a relatively small compass a lucid and instructive view of 
the whole theoiy of the action of trover. It is there said 
that ^'on principle, one who deals with goods at the 
request of the person who has the actual custody of 
them, in the bona fide belief that the custodian is the 
true owner, or has the authority of the true owner, 
should be excused for what he does if the act is of such a 
nature as would be excused if done by the authority of the 



(u) Lancathire Waggon Co, t. 
Fitzhugh (1861) 6 H. & N. 502, 30 
L. J. Ex. 231 (action by bailor 
against sheriff for selling the goods 
absolutely as goods of the bailee 
under a Jl. fa. ; the deoiBion is on 
the pleadings only). 

[x) Cooper v. WillomaU (1846) 1 
C. B. 672, 14 L. J. C. P. 219. 

(y) Jone$ v. Sough (1879) 6 Ex. 
DiT. 115, 49 L. J. Ex. 211 ; cp. 

P. 



JSeald T. Carey (next note). 

(z) Heald v. Carey (1852) 11 G. B. 
977, 21 L. J. 0. P. 97 ; but this is 
really a case of the class last men- 
tioned, for the defendant reoeiyed 
the goods on behalf of the true 
owner, and was held to have done 
nothing with them that he might 
not properly do. 

(a) L. R. 7 H. L. at pp. 766— 
768. 

Y 



322 WRONGS TO POSSESSION AND PROPERTY. 

I person in pOBseesion {b)^ if he was a finder of the goods, or 
intrusted with their onstody/' This exdndee from pro- 
tection, and was intended to exclude, such acts as those of 
the defendants in the case then at bar : they had bought 
cotton, innocentlj and without negligence, from a holder 
who had obtained it by fraud, and had no title, and they 
had immediately resold it to a firm for whom they 
habitually acted as cotton brokers, not making any profit 
beyond a broker's commission. Still it appeared to the 

' majority of the judges and to the House of Lords that 
the transaction was not a purchase on account of a certain 
customer as principal, but a purchase with a mere ex* 
pectation of that customer (or some other customer) 
taking the goods; the defendants therefore exerdBed a 
real and effectiYe though transitory dominion : and having 
thus assumed to dispose of the goods, they were liable to 
the true owner (o). So would the ultimate purchasers 
have been (though they bought and used the cotton in 
good faith), had the plaintiffs thought fit to sue them {d), 

AotBof But what of the servants of those purchasers, who 

handled the cotton under their authority and apparent 
title, and by making it into twist wholly changed its form P 
Assuredly this was conversion enough in fact and in the 
common sense of the word ; but was it a conversion in lawP 
Could any one of the factory hands have been made the 
nominal defendant and liable for the whole value of the 
cotton ? Or if a thief brings com to a miller, and the miller, 
honestly taking him to be the true owner, grinds the com 

(b) Obeeire that this means phj- to sale and deUyezy bj an aao« 

sical poesession; in some of the tioneer without notice of the 

oasee proposed it would be aooom- apparent owner's want of title : 

panied by legal possession, in others Oansolidated Co, t. OurlU, '92, 1 

not. Q. B. 495, 61 L. J. Q. B. 325. 

(«) See per Lord Cairns, 7 H. L. {d) Blackburn, J., 7 H. L. 764, 

at p. 797. This principle applies 768. 



serrants. 



OONVEBSION BT BAILEES. 



338 



I 



into meal and delivers the meal to him without notioe of his 
want of title ; is the miller, or are his servants, liable to the 
true owner for the value of the com P Lord Blackburn 
thoughtthe6eque6tionsopenanddoubtful(«). There appears 
to be nothing in the authorities to prevent it from being 
excusable to deal with goods merely as the servant or agent 
of an apparent owner in actual possession, or under a con- 
tract, with such owner, according to the apparent owner's 
direction ; neither the act done, nor the contract (if any), 
purporting to involve a transfer of the supposed property 
in the goods, and the ostensible owner's direction being 
one which he could lawfully give if he were really entitled 
to his apparent interest, and being obeyed in the honest (/) 
belief that he is so entitled. It might or might not be 
convenient to hold a person excused who in good faith 
assumes to dispose of goods as the servant and under the 
authority and for the benefit of a person apparently entitled 
to possession but not already in possession. But this could 
not be done without overruling accepted authorities (^). 

A bailee is prima facie estopped as between himself and Bie- 
the bailor from disputing the bailor's title (A). Hence, as \yj t^^es. 
he cannot be liable to two adverse claimants at once, he is 
also justified in redelivering to the bailor in pursuance of 



{e) See last note. 

(/) Should we say " honest and 
naaonabLe"? It seems not; a 
person doing a ministerial act of 
{his kind honesUj but not rea- 
Bonablj ought to be liable for 
negligenoe to the extent of the 
actual damage imputable to his 
neglig^ce, not in troTer for the 
full value of the goods ; and eyen 
apart from the technical effect of 
couTerslony negligenoe would be 
the substantial and rational ground 



of liability. Behaviour g^rosdj in- 
oonsistent with the common pru- 
dence of an honest man might 
here, as elsewhere, be evidence of 
bad faith. 

iff) See SUpJms ▼. BltoaU (1815) 
4 M. & S. 259; 16 B. B. 458; 
JBarker Y. Fitrlonfft »91, 2 Ch. 172, 
60 L. J. Oh. 868, p. 818, above. 

(A) 7 Hen. VII. 22, pi. 8, per 
Martin. Common learning in mo- 
dem books. 



y2 



334 



WRONGS TO POSSESSION AND PROPERTY. 



his employment, so long as he has not notioe (or rather is 
not under the effective pressure) (A) of any paramount 
claim : it is only when he is in danger of such a claim that 
he IB not bound to redeliver to the bailor (t). When there 
are really conflicting daims, the contract of bailment does 
not prevent a bailee from taking interpleader proceed- 
ings (A). This case evidently falls within the principle 
suggested by Lord Blackburn ; but the rules depend on 
the special character of a bailee's contract. 



Abuse of 

limited 

interest. 



Where a bailee has an interost of his own in the goods 
(as in the common cases of hiring and pledge) and under 
colour of that interest deals with the goods in excess of his 
right, questions of another kind arise. Any excess what- 
ever by the possessor of his rights under his contract with 
the owner will of course be a breach of contract, and it 
may be a wrong. But it will not be the wrong of conver- 
sion imless the possessor's dealing is ^' wholly inconsistent 
with the contract under which he had the limited interest," 
as if a hirer for example destroys or sells the goods (/). 
That is a conversion, for it is deemed to be a repudiation 
of the contract, so that the owner who has parted with 
possession for a limited purpose is by the wrongful act 
itself restored to the immediate right of possession, and 
becomes the effectual " true owner " capable of suing for 



(A) £iddU T. Bond (1866) 6 B. 
& S. 226, 34 L. J. Q. B. 137, 
where it is said that there must be 
something equiralent to eviotioii 
by title paramoimt. 

(«) See Sheridan y. New Quaff 
Co. (1868) 4 G. B. N. S. 618, 28 
L. J. G. P. 68 ; JBuropean and 
Australian Royal Mail Co, v. Soydl 
Mail 8Uam Packet Co, (1861) 30 
L. J. 0. P. 247 ; Jessel M. B. in 



MxparU Daviee (1881) 19 Oh. IHt* 
86, 90. 

(k) Bogere t. Lambert^ '91, 1 
Q. B. 318, 60 L. J. Q. B. 187« 
following BiddU y. Bond, note (A). 

(/) Blackbnm J., L. B. 1 Q. B. 
614 ; Cooper y. Willomatt, 1 G. B. 
672, 14 L. J. G. P. 219. It can be 
a trespass only if the bailment is at 
wiU. 



CONVEESION BY ABUSE OF EIGHTS. 



3'i5 



the goods or their yalue. But a merely irregnlar exeroise 
of power, as a sub-pledge (m) or a premature sale (n), is not 
a oon version; it is at most a wrong done to the rever- 
sionaiy interest of an owner out of possession, and that 
owner must show that he is really damnified (o). 

The technical distinction between an action of detinue 
or trover and a special action on the case here corresponds 
to the substantial and permanent difference between a 
wrongful act for which the defendant's rightful possession 
is merely the opportunity, and a more or less plausible 
abuse of the right itself. 

The case of a common law lien, which gives no power of 
disposal at all, is different ; there the holder's only right is 
to keep possession until his claim is satisfied. If he parts 
with possession, his right is gone, and his attempted dis- 
posal merely wrongful, and therefore he is liable for the 
full value {p). But a seller remaining in possession who* 
re-sells before the buyer is in default is liable to the buyer ^ 
only for the damage really sustained, that is, the amount i 
(if any) by which the market price of the goods, at the * 
time when the seller ought to have delivered them, exceeds ^ 
the contract price {q). The seller cannot sue the buyer for ) 



I 



(m) Donald y. Suekling (1866) L. 
B. 1 Q. B. 686, 35 L. J. Q. B. 
232. 

(n) KaUiday v. Holgate (1S68) 
Ex. Ch. L. B. 8 Ex. 299 ; see at 
p. 302, 37 L. J. Ex. 174. 

(o) In Johnion y. Stear (1863) 
16 0. B. K. S. 330, 33 L. J. G. P. 
130, nosiinal damages were given; 
bat it is doubtfnl whether, on the 
reasoning adopted by the majority 
of the Court, there should not haye 
been judgement for the defendant : 
see 2 Wms. Sannd. 1 14 ; Blackburn 
J., L. B. 1 Q. B. 617 ; Bramwell 



L. J., 3 Q. B. D. 490. 

{p) MuUin&r y. Fhrenee (1878) 
3 Q. B. Diy. 484, 47 L. J. Q. B. 
700, where an innkeeper sold a 
guest's gt>ods. A statutory power 
of sale was g^yen to innkeepers 
yery shortly after this decision (41 
& 42 Vict. o. 38), but the principle 
may still be applicable in other 
oases. 

(q) Chinery y. ViaU (1860) 6 H. 
& N. 288, 29 L. J. Ex. 180. This 
rule cannot be applied in f ayour of 
a sub-vendor sued for conversion 
by the ultimate purchaser, there 



336 



WKOKGS TO POSSESSION AND PEOPERTY. 



} the prioe of the goods, and if the bayer oould reooyer the 
I full yalue from the seller he would get it without any 
! consideration : the real substance of the cause of action is 
I the breach of contract, which is to be compensated accord- 
f ing to the actual damage (r). A mortgagor haying the 
possession and use of goods under coYcnants entitling him 
thereto for a certain time, determinable by default after 
notice, is yirtually a bailee for a term, and, like bailees in 
general, may be guilty of conyersion by an absolute dis- 
posal of the goods ; and so may assignees claiming through 
him with no better title than his own ; the point being, as 
in the other cases, that the act is entirely inconsistent with 
the terms of the bailment (s). One may be allowed to 
doubt, with Lord Blackburn, whether these fine distinc- 
tions haye done much good, and to wish '' it had been 
originally determined that eyen in such cases the owner 
should bring a special action on the case and recoyer the 
damage which he actually sustained '' (t). Certainly the 
law would haye been simpler, perhaps it would haye been 
juster. It may not be beyond the power of the House of 
Lords or the Court of Appeal to simplify it eyen now; 
but our business is to take account of the authoritiee as 
they stand. And, as they stand, we haye to distinguish 
between — 

(i.) Ordinary cases of conyersion where the full yalue 
can be recoyered : 



beings no priyity between fhem : 
Johnwn ▼. Lane». % Yorkshire S, 
Co, (1878) 3 0. P. D. 499. 

(r) <*A man cannot merely by 
chang^g bifl form of action vary 
the amount of damage bo as to 
recover more than the amonnt to 
which he is in law really entitled 
according to the true facts of the 



case and the real nature of the 
transaction:" per Cur. 29 L. J. 
Ex. 184. 

(«) Fenn y. BittUtUm (1851) 7 
Ex. 162, 21 L. J. Ex. 41 ; where 
see the distinctions as to trespass 
and larceny carefully noted in the 
judgment delivered by Parke B. 

(0 L. B. 1 Q. B. at p. 614. 



1 



TENANTS IN COMMON. . 827 

(ii.) Cases where there is a oonyersion but only the 
plaintifE's aotual damage can be reooyered : 

(iii.) Cases where there is a oonyersion but onlj 
nominal damages can be reooyered ; but suoh 
cases are anomalous^ and depend on the sub- 
stantial cause of action being the breach of a 
contract between the parties; it seems doubt- 
ful whether thej ought oyer to haye been 
admitted: 

(iy.) Cases where there is not a conyersiony but an 
action (f ormerlj a special or innominate action 
on the case) lies to recoyer the actual damage. 

A man may be liable by estoppel as for the oonyersion Conver- 

, , , uon bv 

of goods which he has represented to be in his possession estoppel, 
or control, although in fact they were not so at any time 
when the plaintiff was entitled to possession {u). And he | 
may be liable for oonyersion by refusal to deliyer, when he 
has had possession and has wrongfully deUyered the goods 
to a person haying no title. He cannot deliyer to the 
person entitled when the demand is made, but, haying 
disabled himself by his own wrong, he is in the same posi- 
tion as if he still had the goods and refused to deliyer {x). 



VI. — Injuries between Tenants in Common. 



As between tenants in common of either land or chattels Trespasses 
I there cannot be trespass unless the act amounts to an tenants in 
actual ouster, i.e. dispossession. Short of that ^* trespass <»™**>°' 
will not lie by the one against the other so far as the land 
is concerned" (y). In the same way acts of legitimate 

(m) Setan t. Zafotu (1887) 19 Q. 65 L. T. 284, G. A. 

B. Diy. 68, 66 L. J. Q. B. 416. (y) Loid Hatherley, Jaeobi y. 

(x) Bristol and W. of England Ssward (1872) L. B. 6 H. L. 464, 

Bank T. Midland B. Co., '91, 2 472, 41 L. J. C. P. 221. 
Q. B. 663, 61 L. J. Q. B. 116, 



328 WRONGS TO POSSESSION AND PKOPEETY. 

use of the oommon property cannot beoome a conversion 
through Bubsequent mifiappropriation, though the form in 
which the property exists may be wholly converted, in a 
wider sense, into other forms. There is no wrong to the 
co-tenant's right of property until there is an act incon- 
sistent with the enjoyment of the property by both. 
For every tenant or owner in common is equally entitled 
to the occupation and use of the tenement or property {z) ; 
he can therefore become a trespasser only by the manifest 
assumption of an exclusive and hostile possession. It was 
for some time doubted whether even an actual expulsion 
of one tenant in common by another were a trespass ; but 
the law was settled, in the latest period of the old forms 
of pleading, that it is (a). At first sight this seems an 
exception to the rule that a person who is lawfully in 
possession cannot commit' trespass : but it is not so, for 
a tenant in common has legal possession only of his 
own share. Acts which involve the destruction of the 
property held in common, such as digging up and carry- 
ing away the soil, are deemed to include ouster (6) ; unless, 
of course, the very nature of the property (a coal-mine 
for example) be such that the working out of it is the 
natural and necessary course of use and enjoyment, in 
which case the working is treated as rightfully imdertaken 
for the benefit of all entitled, and there is no question of 
trespass to property, but only, if dispute arises, of account- 
ing for the proceeds (c). 

The normal rights of co-owners as to possession and use 
may be modified by contract. One of them may thus have 
the exclusive right to possess the chattel, and the other 

{z) Litt. 8. 323. {b) Wtlkifuon r. Haygarth (1846 

(«) Murray v. Jo// (1849) 7 0. B. 12 Q. B. 837, 16 L. J. Q. B. 103, 

441, 18 L. J. 0. P. 161, and Bige- Co. Litt. 200. 

low L. 0. 343. {e) Job v. FotUm (1876) 20 Eq. 

84, 44 L. J. Gh. 262. 



^. 



EULE IN FAVOUR OP POSSESSION. 329 

may have temporary possession or custody, as his bailee or 
servant, nidthout the power of conferring any possessory 
right on a third person even as to his own share. In 
Nyberg v. Sandeiaar (d)y A. had sold a half share of 
a valuable chattel to B., on the terms that A. should retain 
possession until the chattel (a gold enamel box) could be 
sold for their common benefit. Afterwards A. let B. have 
the box to take it to an auction room. Then B., thus 
having manual possession of the box, delivered it to Z. by 
way of pledge for a debt of his own. The Court of Appeal 
held that Z. had no defence to an action by A. The 
judgments proceed on the assumption that B., while 
remaining owner in common as to half the property, 
had acqidred possession only as bailee for a special 
purpose, and his wrongful dealing with it determined 
the bailment, and re-vested A.'s right to immediate 
possession (e). 

VJLL. — Extended Protection of Possession, 

An important extension of legal protection and remedies Rights of 
has yet to be noticed. Trespass and other violations of ^^^^r 
possessory rights can be committed not only against the ^?!^ 
person who is lawfully in possession, but against any "^ *^' 
person who has legal possession, whether rightful in its 
origin or not, so long as the intruder cannot justify his 
act under a better title. A mere stranger cannot be heard 
to say that one whose possession he has violated was not 
entitled to possess. Unless and until a superior title or 

{d) '92, 2 Q. B. 202, 61 L. J. a bailee, or was not rather in 

Q. B. 709, 0. A. the pontion of a servant having 

(e) Gp. Fenn v. BitUetUm (1851), bare custody. The action would 

7 Ex. 162, p. 326, above, and have been detinne or trover under 

similar cases dted in text. Qu, the old practice, and was ao treated 

whether, on the facts, B. was even hj the Court. 



830 



WBONGS TO POSSESSION AND FROPEBTT. 



jiistifloation is shown, existing legal possession is not onlj 
presumptive but conolusiYe evidence of the right to possess. 
Boxnetimes mere detention may be sufficient : but on prin- 
ciple it seems more correot to say that physical control or 
occupation is prima facie evidence that the owner is in 
exercise (on his own behalf or on that of another) of an 
actual legal possession, and then, if the contrary does not 
appear, the incidents of legal possession follow. The 
practical result is that an outstanding daim of a third 
party {jus tertiiy as it is called) cannot be set up to excuse 
either trespass or conversion: ^'against a wrong-doer, 
possession is a title " : ^^ any possession is a legal possession 
against a wrong-doer " : or, as the Boman maxim runs, 
^'adversus extraneos vitiosa possessio prodesse solet" (/). 
As regards real property, a possession commencing by 
trespass can be defended against a stranger not only 
by the first wrongful occupier, but by those claiming 
through him ; in fact it is a good root of titie as against 
every one except the person really entitled (g) ; and idti- 
mately, by the operation of the Statutes of Limitation, it 
may become so as against him also. 

The authorities do not clearly decide, but seem to imply, 
that it would make no difference if the de facto possession 



(/) Graham t. Feai (1801) 1 East 
244, 246, 6 B. B. 268; Jefriet 
T. O. W. H, Co. (1866) 5 E. & 
B. 802, 25 L. J. Q. B. 107; 
JBoumeY. Fo»hrook$ (1866) 18 C. B. 
N. S. 616, 84 L. J. 0. P.* 164 ; 
extending the prinoiple of Armory 
y. Delamiris (1722) 1 Str. 604 
[606], and in 1 Sm. L. G. ; D. 
41. 3, de poes. 63, of. Panlns Sent. 
Beo. y. 11 { 2 : '< saffidt ad proba- 
tionem si rem ooiporaliter teneam." 
j^juL Buoh uee and enjoyment as 
the natore of the sabjeot-matter 



admits of is good eyidenoe of pos- 
session. Bee Harpmr y. CharUt' 
worth (1826) 4 B. ft 0. 674, and 
other authorities ooUeoted in Pol- 
look and Wright on Possession, 
31—36. 

(p) Aiherv, WhiUoek (1866) L. 
B. 1 Q. B. 1, 36 L. J. Q. B. 17 ; 
cp. CutU y. Spring (1818) 16 Mass. 
136, and Bigelow L. 0. 341 ; and 
Rosenberg y. Cook (1881) 8 Q. B. 
Diy. 62, 61 L. J. Q. B. 170, and 
see further PoUook and Wright, 
op. eit. 96—99. 



BIGHT TO RESUME POSSESSION. 



331 



violated by the defendant were not only ndthont title, but 
obvionflly wrongful. But tlie role is in aid of de facto pos« 
iseseion only. It will not help a claimant who has been in 
possession but has been dispossessed in a lawful manner 
and has not any right to possess (A). 

This rule in favour of possessors is fundamental in both 
dyil and oriminal jurisdiction. It is indifferent for most 
praotioal purposes whether we deem the reason of the law 
to be that the existing possession is prima facie evidence of 
ownership or of the right to possess — ^' the presumption of 
law is that the person who has possession has the pro- 
perty " (t) : — or, that for the sake of public peace and 
security, and as " an extension of that protection which 
the law throws around the person " (A;), the existing pos- 
session is protected, without regard to its origin, against 
all men who cannot make out a better right : — or say (/) 
that the law protects possession for the sake of true owners, 
and to relieve them from the vexatious burden of continual 
proof of title, but cannot do this effectually without pro- 
tecting wrongful possessors also. Such considerations may 
be guides and aids in the future development of the law, 
but none of them will adequately explain how or why it 
came to be what it is. 



(A) BuehUy y. Orosi (1863) 3 B. 
ft S. 566, 32 L. J. Q. B. 129. 

(0 Loid Campbell 0. J. in Jef- 
friet V. a, W, R. Co. (1866) 6 E. & 
B. at p. 806, 26 L. J. Q. B. 107 ; 
but this does not seem oonaistent 
-with the protection of even a mani- 
festly wrongful possessor against a 
new extraneous wrong-doer. In 
"RninaTi law a thief has the inter- 
dicts though not the actio furtiy 
which requires a lawful interest in 
the plaintiff ; in the common law 
it seems that he can maintain 
trespass. 



(^) Lord Denman 0. J. in Bogen 
▼. ^pence (1844) 13 M. & W. at p. 
681. This is precisely Savigny's 
theory, which however is not now 
generally aooepted by students of 
Boman Law. In some respects it 
fits the oommon law better. Mr. 
Justice Holmes in '* The Common 
Law " takes a yiew efutdem ffenerit, 
but distinct. 

(0 With Ihering (Orund des 
Besitzessohutzes, 2d ed. 1869). Cp. 
the same author's **Der Besitz- 
wiUe," 1889. 



332 WRONGS TO POSSESSION AND PBOPERTY. 



Bights of Again, as de facto possession is thus protected, so dejure 
entitled to possession — ^if bj that term we may designate an imme- 
^^1^^ diate right to possess when separated from actual legal 
rion. possession — ^was even under the old system of pleading 

invested with the benefit of strictly possessoiy remedies ; 
that is, an owner who had parted with possession, but was 
entitled to resume it at will, could sue in trespass for 
a disturbance by a stranger. Such is the case of a land- 
lord where the tenancy is at will (m), or of a bailor where 
the bailment is revocable at will, or on a condition that 
can be satisfied at will ; which last case includes that of a 
trustee of chattels remaining in the control and enjoyment 
of the cestui que trusty for the relation is that of bailment 
at will as regards the legal interest (n). In this way the 
same act may be a trespass- both against the actual pos- 
sessor and against the person entitled to resume possession. 
*' He who has the property may have a writ of trespass, 
and he who has the custody another writ of trespass " (o). 
'^ If I let my land at will, and a stranger enters and digs 
in the land, the tenant may bring trespass for his loss, and 
I may bring trespass for the loss and destruction of my 
land " (m). And a lessor or bailor at will might have an 
action of trespass vi et armis against the lessee or bailee 
himself where the latter had abused the subject-matter in 
a manner so inconsistent with his contract as to amount to 
a determination of the letting or bailment. '^ If tenant 

I at will commit voluntary waste, as in pulling down of 
houses, or in felling of trees, it is said that the lessor shall 
have an action of trespass for this against the lessee. Ab 
if I lend to one my sheep to tathe his land, or my oxen to 

(m) Bro. Ab. Treepas, pi. 131 ; eervaDt is beaten and the master 

19 Hen. YI. 45, pi. 94, where it is has an action for loss of service, 
pointed out that the tre8passer*8 act (n) See Barker y. Furlong ^ '91, 

is one, but the causes of action are 2 Ch.l72, 60 L. J. Ch. 368. 
« diversis reepectibas," as where a (o) 48 Edw. III. 20, pi. 8. 



POSSESSION THROUGH TRESPASS. 333 

plow the land, and he killeth my cattle, I may well have 
an action of trespass against him notwithstanding the 
lending " (j^)« 

An exclusive right of appropriating things in which 
property is acquired only by capture is on the same footing 
in respect of remedies as actual possession (q). 

Derivative possession is equally protected, through what- Rights of 
ever number of removes it may have to be traced from the p^^n. 
owner in possession, who (by modem lawyers at any rate) 
is assumed as the normal root of title. It may happen 
thiat a bailee delivers lawful possession to a third person, to 
hold as under-bfidlee from himself, or else as immediate 
bailee from the true owner : nay more, he may re-deliver 
possession to the bailor for a limited purpose, so that the 
bailor has possession and is entitled to possess, not in his 
original right, but in a subordinate right derived from his 
own bailee (r). Such a right, while it exists, is as fully 
protected as the primary right of the owner would have 
been, or the secondary right of the bailee would be. 

Troublesome questions were raised under the old law by PoMession 
the position of a person who had got possession of good» tbrongh 
through delivery made by a mere trespasser or by an\ *^f®«pa*»®'- 
originally lawful possessor acting in excess of his right.) 
One who receives from a trespasser, even with full know-' 
ledge, does not himself become a trespasser against the 
true owner, as he has not violated an existing lawful pos- ' 
session («). The best proof that such is the law is the | 

{p) liitt. 8. 71. If anj doubt be (g) Holford y. BaiUy (1849) 13 

impUed in Littleton's ** it is said," Q. B. 426, 18 L. J. Q. B. 109, 

Coke's oommentafj removes it. Ex. Ch. 

Such an aot '< conoemeth so maoh (r) Itoh$rU y. Wyatt (1810) 2 

the freehold and inheritance, as it Taunt. 268 ; II R. R. 666. 
doth amount in law to a deter- («) WiUon y. Barber (1833) 4 B. 

mination of his wilL" & Ad. 614. 



384 



WRONGS TO POSSESSION AND PEOPEETY. 



ezistenoe of the off enoe of reoeiying stolen goods as distinot 
from theft; if reoeiying from a trespasser made one a 
trespasser, the receipt of stolen goods with the intention 
of depriving the true owner of them would have been 
laroeny at oommon law. Similarly where a bailee wrong- 
fullj delivers the goods over to a stranger ; though the 
bailee's mere assent will not prevent a wrongful taking by 
the stranger from being a trespass {t). 

The old law of real property was even more favourable 
to persons claiming through a disseisor ; but it would be 
useless to give details here. At the present day the old 
forms of action are almost everywhere abolished ; and it 
is quite certain that the possessor under a wrongful title^ 
even if he is himself acting in good faith, is by the 
oommon law liable in some form to the true owner (u)^ and 
in the case of goods must submit to recapture if the owner 
can and will retake them {x). In the theoretically possible 
case of a series of changes of possession by independent 
trespasses, it would seem that every successive wrong-doer 
is a trespasser only as against his immediate predecessor, 
whose de facto possession he disturbed : though as regards 
land exceptions to this principle, the extent of which is not 
free from doubt, were introduced by the doctrine of " entry 
by relation" and the practice as to recovery of mesne 
profits. But this too .is now, as regards civil liability, a 
matter of mere curiosity (y). 



(0 27 Hen. VII. 39, pi. 49; 
op. 16 Hen. VII. 2, pi. 7 ; Mennie 
y. Blake (1856) 6 E. & B. 842, 25 
L. J. Q. B. 399. 

(«) 12 Edw. IV. 13, pi. 9 ; but 
this was probably an innovation at 
the time, for Brian dissented. The 
action appean to have been on the 
case for spoiling the goods. ' 

{x) See Blades y. Sippe (1865) 



11 H. L. 0. 621, 34 L. J. 0. P. 
286, where this was assumed with- 
out discussion, only the question of 
property being argued. But pro- 
bably that case goes too far in 
allowing recapture by force, ex- 
cept perhaps on fresh pursuit : see 
p. 347, below. 

(y) The common law might con- 
ceivably have held that there was 



WBONGS TO EASEMENTS^ ETC. 



336 



VJJLl. — Wrongs to Easements^ etc. 

Easements and other inooiporeal rights in property, violation 
" rather a fringe to property than property itself " as they ^^^^^ 
have been ingeniously called (s), are not capable in an rightb. 
exact sense of being possessed. The enjoyment which 
may in time ripen into an easement is not possession, and 
gives no possessory right before the due time is fulfilled : 
<< a man who has used a way ten years without title cannot 
sue even a stranger for stopping it" {a). The only pos- 
session that can come in question is the possession of the 
dominant tenement itself, the texture of legal rights and 
powers to which the ^' fringe " is incident. Nevertheless 
disturbance of easements and the like, as completely 
existing rights of use and enjoyment, is a wrong in the 
nature of trespass, and remediable by action without any 
allegation or proof of specific damage (6) ; the action was 
on the case under the old forms of pleading, since trespass 
was technically impossible, though the act of disturbance 
might happen to include a distinct trespass of some kind, 
for which trespass would lie at the plaintifE's option. 

To consider what amounts to the disturbance of rights 
in re aliena is in effect to consider the nature and extent of 



a Idnd of priyity of wrong^fol estate 
between an orig^al trespaaaer nnd 
persons claiming tlurough him, and 
thus applied the dootrine of eon- 
tinning treepass to such persons ; 
and this wonld perhaps have been 
the more logical oonrse. But the 
natural dislike of the judges to 
multiplTing capital felonies, operat- 
ing on the intinmte connexion be- 
tween trespass and larcenj, has in 
several directiona prerented • the 
law of trespass from being logical. 
For the law of trespass to land as 



affected hj relation, see JBamett ▼. 
QuUdford (1866) 11 Ex. 19, 24 L. 
J. Ex. 280 ; Anderton y. Badelifi 
(1860) Ex. Ch., E. B. & £. 819, 
29 L. J. Q. B. 128, and Bigelow 
L. C. 361—870. 

(s) Mr. Gibbons, Prefaoe to the 
fifth edition of Gale on Easements, 
1876. 

(a) Holmes, The Common Law, 
240, 382. 

{b) iWms. Saund. 626; Sarrop 
y. mrtt (1868) L. B. 4 Ex. 43, 46, 
88L. J. Ex. 1. 



336 



WRONGS TO POSSESSION AND PROPERTY. 



the rights themselves {c)^ and this does not enter into our 
plan, save so far as such matters oome nnder the head of 
Nuisance, to which a separate chapter is given. 

Franchises and incorporeal rights of the like nature, as 
patent and copyrights, present something more akin to 
possession, for their essence is exclusiveness ; and indeed 
trespass was the proper remedy for the disturbance of a 
strictly exclusive right. '' Trespass lies for breaking and 
eQtering a several fishery, though no fish are taken." And 
so it has always been held of a free warren {d). But the 
same remark applies ; in almost every disputed case the 
question is of defining the right itself, or the conditions of 
the right (c) ; and de facto enjoyment does not even pro- 
visionally create any substantive right, but is material only 
as an incident in the proof of title. 

IX. — Grounds of Justification and Eoscuse. 

Lioenoe. Acts of interference with land or goods may be justified 
by the consent of the occupier or owner ; or they may be 
justified or excused (sometimes excused rather than justi- 
fied, as we shall see) by the authority of the law. That 



(tf) Thxx&Hophini ▼. 0. N. JZ. Co, 
(1877) 2 Q. B. DiT. 224, 46 L. J. 
Q. B. 266, sets bounda to the ex- 
doaiye right conferred by the fran- 
chiae of a ferry, and DaUon y. 
Anffut (1881) 6 App. Ca. 740, 50 
L. J. Q. B. 689, diacnsses with the 
utmost fulness the nature and extent 
of the right to lateral support for 
buildings. Both decdsions were 
giyen, in form, on a daim for 
damages from alleged wrongful 
acts. Yet it is dear that a work 
on Torts is not the place to consider 
the many and diyerse opinions ex- 
pressed in Dalton y. Angw^ or to 



define the franchise of a ferry or 
market. Again the later case of 
Attorney 'Omeral v. Homer (1885) 
11 App. Ga. 66, 55 L. J. Q. B. 
193, interprets the grant of a 
market in nve juxta quodam loeo, on 
an information aUeging encroach- 
ment on pubUc ways by the lessee 
of the market, and claiming an 
injunction. 

(d) Holford y. Bailey, Ex. Oh. 
(1848-9) 13 Q. B. 426, 18 L. J. 
Q. B. 109. See the authoritiee 
collected in argument, e. e. in court 
below, 8 Q. B. at p. 1010. 



LICENCE AKD INTEBEST. 337 

ooDBent whioh, without passing an j interest in the property 
to which it relates, merely prevents the acts for which 
oonsent is given from being wrongful, is called a licence. 
There may be licences not affecting the use of property at 
ally and on the other hand a licence may be so connected 
with the transfer of property as to be in fact inseparable 
from it. 

*^ A dispensation or licence properly passeth no interest, 
nor alters or transfers property in anything, but only 
makes an action lawful, which without it had been 
unlawful. Ab a licence to go beyond the seas, to hunt in 
a man's park, to come into his house, are only actions 
which without licence had been unlawful. But a licence 
to hunt in a man's park and carry away the deer killed to 
his own use, to cut down a tree in a man's ground, and to 
carry it away the next day after to his own use, are licences 
as to the acts of hunting and cutting down the tree, but aa 
to the carrying away of the deer killed and tree cut down 
they are grants. So to licence a man to eat my meat, or i 
to fire the wood in my chimney to warm him by ; as to the \ 
actions of eating, firing my wood and warming him, they . 
are licences : but it is consequent necessarily to those 
actions that my property be destroyed in the meat eaten, 
and in the wood burnt. So as in some cases by consequent 
and not directly, and as its effect, a dispensation or licence I 
may destroy and alter property " (e). ' 

Generally speaking, a licence is a mere voluntary sus- Reyooa- 
pension of the licensor's right to treat certain acts as licence: 
wrongful, comes to an end by any transfer of the property ^^^^^ 
with respect to which the licence is given (/), and is ooupiod 
revoked by signifyiDg to the licensee that it is no longer intereet. 

{e) Vanghan 0. J., Thmat v. (/) JFaUis ▼. Harrwm (1838) 4 

Sorrell, Yaughan 861. M. & W. 638, 8 L. J. Ex. 44. 

P. Z 



338 



WBONGS TO POSSESSION AND PB0PEBT7. 



I the lioensor's will to allow the acts permitted by the lioenoe. 
The reTOoation of a lioenoe is in itself no less effeotual 
though it may be a breaoh of oontraot. If the owner of 
land or a building admits people thereto on payment, as 
spectators of an entertainment or the like, it may be a 
breach of contract to require a person who has duly paid 
his money and entered to go out, but a person so required 
has no title to stay, and if he persists in staying he is a 
trespasser. His only right is to sue on the contract (/) : 
when, indeed, he may get an injunction, and so be indi- 
rectly restored to the enjoyment of the licence (g). But 
if a licence is part of a transaction whereby a lawful 
interest in some property, besides that which is the imme- 
diate subject of the licence, is conferred on the licensee, 
and the licence is necessary to his enjoyment of that 

(interest, the licence is said to be " co upled with an into* 
rest " and cannot be revoked until its purpose is fulfilled : 
nay more, where the grant obviously cannot be enjoyed 
without an incidental licence, the law will annex the 
necessary licence to the grant. ''A mere licence is 
revocable; but that which is called a licence is often 
something more than a licence ; it often comprises or 
is connected with a grant, and then the party who has 
given it cannot in general revoke it so as to defeat his 
grant to which it was incident" (A). Thus the sale of a 



(/) Wood V. LeadHtter (1845) 13 
M. & W. 838, 14 li. /"Ex. 161; 
nyd« y. Graham (1862) 1 H. & 0. 
693, 32 L. J. Ex. 27. A oontract 
to cany passengers does not con- 
Btitute or include a lioenoe so as to 
let in this doctrine, though part or 
the whole of the journey may be 
on land belong^g to the railway 
company or other carrier: Butler 
V. if. 8, ^ X. R, Co. (1888) 21 Q. 



B. Div. 207, 67 L. J. Q. B. 664. 
The reasoning is perhaps open to 
criticism : see L. Q. R. v. 99. 

(g) See FrogleyY, Earl of Love' 
lace (1869) Joh. 333, where how- 
eyer the agreement was treated as 
an agreement to execute a legal 
grant. 

(A) WoodY. Zeadbitter, 13 M. & 
W. 838, 844, 14 L. J. Ex. 161. 



LICENCE AND INTEREST. 339 

etanding crop or of growing trees imports a lioenoe to the 
buyer to enter on the land so far and so often as reasonably 
necessary for catting and carrying off the crop or the trees, 
and the licence cannot be revoked until the agreed time, if 
any, or otherwise a reasonable time for that purpose has 
elapsed (t). The diversity to be noted between licence and 
grant is of respectable antiquity. In 1460 the defendant 
in an action of trespass set up a right of common ; the 
plaintiff said an excessive number of beasts were put in ; 
the defendant said this was by licence of the plaintiff ; to 
which the plaintiff said the licence was revoked before the 
trespass complained of; Billing, then king's serjeant, 
afterwards Chief Justice of the Eling's Bench under 
Edward lY., argued that a licence may be revoked at will 
even if expressed to be for a term, and this seems to have 
so much impressed the Court that the defendant, rather 
than take the risk of demurring, alleged a grant: the 
reporter's note shows that he thought the point new and 
interesting (Ar). But a licensee who has entered or placed [ 
goods on land under a revocable licence is entitled to have I 
notice of revocation and a reasonable time to quit or I 
remove his goods (/). 

Again, if the acts licensed be such as have permanent ^Exeoated 
results, as in altering the condition of land belonging to *^^^*** 
the licensee in a manner which, but for the licence, would 
be a nuisance to adjacent land of the licensor ; there the ' 
licensor cannot, by merely revoking the licence, cast upon ' 
the licensee the burden of restoring the former state of / 
things. A licence is in its nature revocable (m), but the . 

(i) See fariher 2 Wms. Saxind. Melhr y. Watkint (1874) L. B. 9 

363—365, or Cooley on Torts 61. Q. B. 400. 

{h) 39 Hen. YI. 7, pi. 12. (m) Wood ▼. iMdbitier, note (A), 

(Q Comiih y. SliMt (1870) L. B. last page. 
6 0. P. 334, 89 L. J. 0. P. 202 ; 

Z2 



840 WBONQS TO POSSESSION AND PBOPERTT. 



revooation will not make it a trespass to leave things as 
the execution of the licence has made them. In this sense 
it is said that ''a licence executed is^^otoQuntfimi^d- 



able " (n). When a licence to do a particular thing once 
for all has been executed, there ia nothing left to revoke. 

Whether and how far the licensor can get rid of the 
consequences if he mislikes them afterwards is another and 
distinct inquiry, which can be dealt with only by consider- 
ing what those consequences are. He may doubtless get 
rid of them at his own charges if he lawfully can ; but he 
cannot call on the licensee to take any active steps unless 
under some right expressly created or reserved. 

For this purpose, therefore, there is a material difference 
between ^' a licence to do acts which consist in repetition, 
as to walk in a park, to use a carriage-way, to fish in the 
waters of another, or the like," which may be counter- 
manded without putting the licensee in any worse position 
than before the licence was granted^ and ^'a licence to 
construct a work which is attended with expense to the 
party using the licence, so that, after the same is counter- 
manded, the party to whom it was granted may sustain a 
heavy loss " (o). And this rule is as binding on a licensor's 
successors in title as on himself (p). But it is not applic- 
able (in this country at any rate) to the extent of creating 
in or over land of the licensor an easement or other inte- 
rest capable of being created only by deed (q). 

In those cases, however, the licensee is not necessarily 
without remedy, for the facts may be such as to confer on 

(«) JTinter v. Broekwell (1807) 8 {q) Wood ▼. LeadbitUr, p. 838, 

East 308, 9 R. R. 454. This class above; Raffey y. Hmderaon (1861) 

of cases is expressly recognized and 17 Q. B. 674, 21 L. J. Q. B. 49 ; 

distinguished in Woody, Zeadbiiter, Hewitt y.Isham (1861) 7 Ex. 77, 

13 M. & W. at p. 866. 21 L. J. Ex. 36 (showing that 

(o) Liggmty. Inge (1831) 7 Bing. oonyerselj what purports to be a 

682, 694, per cor. reeeryation in a parol demise may 

{p) Ibid, operate as a Uoence). 



EIGHTS OF "bare UCENSEES." 



341 



him an interest which can be made good by way of equit- 
able estoppel (r). This form of remedy has been exten- 
sively applied in the United States to meet the hardship 
oaused by untimely revocation of parol licences to erect 
damSy divert water-courses, and the like («). 

The case of a contract to grant an easement or other 
interest in land must be carefully distinguished when it 
occurs (/). 

The grant or revocation of a licence may be either by Expres- 
ezpress words or by any act sufficiently signifying the uoenaor'B 
licensor's will: if a man has leave and licence to passl'"^ 
through a certain gate, the licence is as effectually revoked! 
by locking the gate as by a formal notice (u). In the 
common intercourse of life between friends and neighbours 
tacit licences are constantly given and acted on. 

We shall have something to say in another connexion {x) DUtino- 
of the rights — or rather want of rights — of a "bare g^taa" 
licensee." Here we may add that a licence, being only a !^^!^^ 
personal right — or rather a waiver of the licensor's rights — 
is not assignable, and confers no right against any third 
person. If a so-called licence does operate to confer an 
exclusive right capable of being protected against a 
stranger, it must be that there is more than a licence, 
namely the grant of an interest or easement. And the 
question of grant or licence may further depend on the 



(r) See Tiimmer ▼. Majf&r of 
Wellington, If. Z, (1884) 9 App. Oa. 
699, 63 L. J. P. G. 104, where the 
two prmciplee do not appear to 
he mifficieDtly distinguished. Gp. 
MeKanut ▼. Cooke (1887) 36 Ch. D. 
681, 696, per Kay J. ; 66 L. J. Gh. 
662. 

(«) Gooley on Torts, 307—310. 

It seems to have sometimes heen 
thought in America that the only 



difficoltj arises from the Statute of 
Frauds, which is of course a mis- 
take : Wood y. Leadbitter, p. 338, 
ahove. The limits of the doctrine 
are in this country fixed hy Ramtden 
T. Byton (1866) L. R. 1 H. L. 129. 

(0 See Smart t. Jtmea (1864) 33 
L. J. G. P. 164. 

(m) See Hffde ▼. Graham, note (/), 
p. 838. 

{x) Ghap. XII. below, ad Jin. 



342 WBONQS TO POSSESSION A»D PBOPEBTY, 

question whether the specified mode of use or enjoyment 
IB known to the law as a substantive right or interest (y) : 
a question that may be difficult. But it is submitted that 
on principle the distinction is clear. I call at a friend's 
house ; a contractor who is doing some work on adjacent 
land has encumbered mj friend's drive with rubbish ; can 
it be said that this is a wrong to me without special 
damage? With such damage, indeed, it is (2), but only 
because a stranger cannot justify that which the occupier 
himself could not have justified. The licence is material 
only as showing that I was not a wrong-doer myself ; the 
complaint is founded on actual and specific injury, not on 
a quasi trespass. Our law of trespass is not so eminently 
reasonable that one need be anxious to extend to licensees 
the very large rights which it gives to owners and occu- 
piers. 

Justifioa- As to justification by authority of the law, this is of two 
l^y kinda: 

1. In favour of a true owner against a wrongful pos- 
sessor ; under this head come re-entry on land and retaking 
of goods. 

2. In favour of a paramount right oonferred by law 
against the rightful possessor ; which may be in the execu- 
tion of legal process, in the assertion or defence of private 
right, or in some cases by reason of necessity. 



Be-entry : 
herein of 
forcible 
entry. 



A person entitled to the possession of lands or tenements 
does no wrong to the person wrongfully in possession by 
entering upon him ; and it is said that by the old common 
law he might have entered by force. But forcible entry is 

(y) Compare NuttaU y. Brae^well the learned editors of Smith's 

(1866) L. B. 2 Ex. 1, 36 L. J. Ex. Leading Oases, in the notes to 

1, with Ormerod v. Todmorden Mill Armory ▼. Delamirie, 

Co. (1883) 11 Q. B. Diy. 165, 52 («) Corhy y. Hill (1858) 4 G. B. 

L. J. Q. B. 445 ; and see Gale on N. S. 656, 27 L. J. C. P. 318. See 

Easements, 6th ed. 42, 283. Contra mare in Chap. XII. below. 



FORCIBLE ENTRY. 343 

an offence under the statnie of 5 Bio. 11. (a.d. 1381), which \ 
provided that '^ none from henceforth make any entry into ' 
any lands and tenementB, but in case where entry is given 
by the law, and in such case not with strong hand nor 
with multitude of people, but only in peaceable and easy 
[the true reading of the Parliament Boll appears to be 
^ liflible, aisee, & peisible '] manner." This statute is still 
in force here, and "has been re-enacted in the several 
American States, or recognized as a part of the common 
law" (a). The offence is equally committed whether the 
person who enters by force is entitled to possession or not : 
but opinions have differed as to the effect of the statute in 
a court of civil jurisdiction. It has been held that a right- 
ful owner who enters by force is not a trespasser, as regards 
the entry itself, but is liable for any independent act done 
by him in the course of his entry which is on the face of 
it wrongful, and could be justified only by a lawful pos- 
session (b) ; and, it should seem, for any other conse- 
quential damage, within the general limit of natural and 
probable consequence, distinguishable from the very act of 
eviction. This is a rather subtle result, and is furth^ 
complicated by the rule of law which attaches legal pos- 
session to physical control, acquired even for a very short 
time, so it be " definite and appreciable " (c), by the right- 
ful owner. A., being entitled to immediate possession (say 
as a mortgagee having the legal estate) effects an actual 
entry by taking off a lock, without having given any notice 
to quit to B. the precarious occupier; thus, "in a very 

(a) Cooley on Tortfl^ 823. For {h) Beddall ▼. Maitland (1881) 

the remedial powers given to jus- 17 Ch. D. 174> 60 L. J. Ch. 401 ; 

tioes of Uie peace hj later statutes, Bdunek v. Sawhet (1881) 18 Ch. D. 

see Lambarde*s Eirenarcha, cap. 4; 199, 60 L. J. Ch. 677, and autho- 

16 Rio. II. c. 2, is still nominaUj rities there discussed, 

in force. As to what amounts to (c) Lord Cairns in Zowt v. Tel- 

forcible entry, Jones y. Foley, '91, ford (1876) 1 App. Ca. at p. 421. 
1 Q. B. 730, 60 L. J. Q. B. 464. 



344 WBONGS TO POSSESSION AMD PBOPEBTT. 

rough and unoourteous way/' that is, peaoeably but only 
just peaoeably, he gets possession : onoe gotten, howeyer, 
his possession is both legal and rightful If therefore 
B. turns him out again by force, there is reasonable and 
probable cause to indict B. for a forcible entry. So the 
House of Lords has decided (d). Neyertheless, according 
to later judgments, delivered indeed in a court of first 
instance, but one of them after consideration, and both 
learned and careful, A. commits a trespass if, being in 
possession by a forcible entry, he turns out B. (^). More- 
oyer, the old authorities say that a forcible turning out of 
the person in present possession is itself a forcible entry, 
though the actual ingress were without violence. ^'He 
that entereth in a peaceable show (as the door being either 
open or but closed with a latch only), and yet when he is 
come in useth violence, and throweth out such as he findeth 
in the place, he (I say) shall not be excused : because his 
entry is not consummate by the only putting of his foot 
over the threshold, but by the action and demeanour that 
he offereth when he is come into the house " (/). And 
under the old statutes and practice, '^ if A. shall disseise B. 
of his land, and B. do enter again, and put out A. with 
force, A. shall be restored to his possession by the help of 
the justices of the peace, although his first entry were 
utterly wrongful : and (notwithstanding the same restitu- 
tion is made) yet B. may well have an assize against A«| 
or may enter peaceably upon him again " (g). 
But old authorities also distinctly say that no action is 

[dj Z(nca Y» Te^ord {ISI 6) I App. doubt, legal pofuession follows 

Ca. 414, 45 L. J. Ex. 613. Mr. title. 

Lightwood seems right in pointing {e) See the judgment of Pry, J. 

out (Possession of Land, Lond. in BedddU y. Maitland, and Edwiek 

1894, p. 38} that even if complete v. Sawket, note (^), last page, 

physical possession had not been (/) Lambarde's Kirenarcha, oap. 

gained the decision would be justi- 4, p. 142, ed. 1610. 

fied by the rule that, in case of (^) lb, 148. 



FRESH BE-ENTBT. 345 

given by the statute to a tenant who is put out with force 
by the person really entitled, " because that that entry is 
not any disseisin of him " (h). There is nothing in them 
to countenance the notion of the personal expulsion being 
a distinct wrong. The opinion of Parke and Alderson was 
in accordance with this (t), and the decision from which 
they dissented is reconcileable with the old books only by 
the ingenious distinction — certainly not made by the 
majority (k) — of collateral wrongs from the forcible evic- 
tion itself. The correct view seems to be that the posses- w 
sion of a rightful owner gained by forcible entry is lawful I 
as between the parties, but he shall be punished for the I 
breach of the peace by losing it, besides making a fine to I 
the king. If the latest decisions are correct, the dispos- ' 
sessed intruder might nevertheless have had a civil remedy 
in some form (by special action on the case, it would seem) 
for incidental injuries to person or goods, provided that 
they were incidental to the unlawful force and not to the 
entry in itself (/). This refinement does not appear to 
have occurred to any of the old ple£ulers. 

A trespasser may in any case be turned off land before Fresh re- 
he has gained possession, and he does not gain possession ^^L^ 
until there has been something like acquiescence in the 
physical fact of his occupation on the part of the rightful 
owner. His condition is quite different from that of a right- 
ful owner out of possession, who can recover legal posses- 
sion by any kind of effective interruption of the intruder's 
actual and exclusive control. A person who had been 

(A) F. N. B. 248 H., Bro. Ab. themaelyes nnoonTertod. 

Forcible Entry, 29. (k) Tindal 0. J. said that poe- 

(i) Newton v. Earland (1840) 1 session gained bj forcible entry 

M. & G, 644, 1 Soott N. B. 474 ; was iUegal ; 1 M. & G. 668. 

in Harvey Y. Brydget {\^Ab) 14 M. (/) See Lightwood on Posses- 

& W. at pp. 442-3, they declared sion of Land, p. 141. 



346 WBOKQS TO POSSESSION AND PBOPEBTT. 

dismissed from the offioe of sohoolmaater and had giyen up 
possession of a room occupied bj him in yirtue of his 
office, but had. afterwards re-entered and occupied for 
eleven days, was held not entitled to sue in trespass for 
an expulsion by the trustees at the end of that time. '^ A 
mere trespasser cannot, by the very act of trespass, imme- 
diately and without acquiescence, give himself what the 
law understands by possession against the person whom he 
ejects, and drive him to produce his title, if he can without 
delay reinstate himself in his former possession" (/). There 
must be not only occupation, but effective occupation, for 
the acquisition of possessory rights. *'In determining 
whether a sufficient possession was taken, muob more 
unequivocal acts must be proved when the person who is 
said to have taken possession is a mere wrong-doer than 
when he has a right under his contract to take posses- 
sion "(m). And unless and until possession has been 
acquired, the veiy continuance of the state of things 
which constitutes the trespass is a new trespass at every 
moment (n). We shall see that this has material conse- 
quences as regards the determination of a cause of 
excuse. 

Kecaption As regards goods which have been wrongfully taken, 
^ ' the taker is a trespasser all the time that his wrongful 
possession continues, so much so that 'Hhe removal of 
goods, wrongfully taken at first, from one place to another, 
is held to be a several trespass at each place " (o), and a 
supervening animus furandi at any moment of the con- 

(T) Browne y. Dawwm (1840) 12 Fletcher (1877) 5 Gh. Diy. 809, 

A. & E. 624, 629, 10 L. J. Q. B. 7. 812. 

If a new trenpaaser entered in this (n) Holmes r. Wilson (1889) 10 

state of things, coold the trespasser A. ft E. 603 ; Bowyer y. Cook 

in inchoate oconpation sae him, or (1847) 4 0. B. 236, 16 L. J. C. P. 

the last possessor P Possibly both. 177 ; and see 2 Wms. Saund. 496. 

(m) Hellish L. J., JSr parte (o) 1 Wms. Sannd. 20. 



HECAPTUBE. 



847 



tinumg trespassoiy possession will oomplete the oflenoe of 
larceny and make the trespasser a thief (p), Aocordingly 
the true owner may retake the goods if he can, even from 
an innocent third person into whose hands they have 
come ; and, as there is nothing in this case answering to 
the statutes of forcible entry, he may use (it is said) what- 
ever force is reasonably necessary for the recaption {q). 
He may also enter on the first taker's land for the purpose 
of recapture if the taker has put the goods /there (r) ; for 
they came there by the occupier's own wrong {s) ; but he 
cannot enter on a third person's land unless, it is said, the 
original taking was felonious (^), or perhaps, as it has been 
suggested, after the goods have been claimed and the 1 
occupier of the land has refused to deliver them {u). J 
Possession is much more easily changed in the case of 
goods than in the case of land; a transitory and almost 
instantaneous control has often, in criminal courts, been 
held to amount to asportation. The difference may have 
been sharpened by the rules of criminal justice, but in a 
general way it lies rather in the nature of the facts than 
in any arbitrary divergence of legal principles in dealing 
with immoveable and moveable property. 



(p) Seg. ▼. Eiley (1867) Dears. 
149, 22 L. J. M. C. 48. 

(q) Bladet v. Higgt (1861) 10 
0. B. N. S. 718, bat the reasons 
giyen at page 720 seem wrong, and 
the decision itself is contrary to the 
oommon law as nndenitood in the 
thirteenth oentnry. One who re- 
took his own goods by force (save, 
perhaps, on fresh pursuit) was a 
trespasser and lost the goods. It 
was eren thought needful to state 
that he was not a felon. See 
Britton, ed. NichoUs, i. 57, 116. 
At all events maim or wounding is 
not justified for this cause: but 



yiolenoe used in defence of a 
wrongful poBsession is a new 
assault, and commensurate resist- 
ance to it in personal self-defence 
is justifiable. 

(r) Fatriek y. Coleriek (1838) 3 
M. & W. 483, explaining Blackst. 
Gomm. iii. 4. 

($) Per Littleton J., 9 £dw. lY. 
36, pi. 10. 

(t) Blaokstone, I. e. ; Anthony y. 
Honey (1882) 8 Bing. 187, and 
Bigelow L. 0. 874. 

(«) Tindal C. J. in Anthony y. 
Money: but this seems doubtfuL 



348 



WROKGS TO POSSESSION AND PB0PEBT7. 



ProoeBsof 
law: 
breaking 
doors. 



One of the most important heads of justifioation under 
a paramount right is the exeoution of legal proeess. The 
mere taking and dealing with that whidi the law com- 
mands to be so taken and dealt with, be it the posses- 
sion of land or goods, or both possession and property of 
goods, is of course no wrong ; and in particular if posses- 
sion of a house cannot be delivered in obedience to a writ 
without breaking the house open, broken it must be {x). 
It is equally settled on the other hand that ^* the sheriff 
must at his peril seize ihe goods of the party against 
whom the writ issues," and not any other goods which are 
wrongly supposed to be his ; even unavoidable mistake is 
no excuse (y). More special rules have been laid down as 
to the extent to which private properiy which is not itself 
the immediate object of the process may be invaded in 
executing the command of the law. The broad distinction 
is that outer doors may not be broken in execution of 
process at the suit of a private person ; but at the suit of 
the Crown, or in execution of process for contempt of a 
House of Parliament (s), or of a Superior Court, they 
may, and must ; and this, in the latter case, though the 
contempt consist in disobedience to an order made in a 
private suit (a). The authorities referred to will guide the 
reader, if desired, to further details. 

Constables, revenue officers, and other public servants, 
and in some cases private persons, are authorized by divers 



[x) Semayne^i Ca, (1604>6) 5 Go. 
Hep. 91 bf and in 1 Sm. L. 0. 

(y) OUuMjmk ▼. Tounff (1829) 9 
B. & C. 696 ; Garland ▼. Carlisle 
(1837) 4 CI. & F. 693. As to the 
protection of subordinate officers 
acting in good faith, see in the 
Chapter of General Exceptions, 
p. 106, abore. 

(z) JBnrdett ▼. Abbot (1811) U 



East 1, 12 B. R. 460, a dassioal 
case. 

(a) And it is contempt in the 
sheriff himsftlf not to execute such 
process \>j breaking in if neces- 
sary : Harvty ▼. Sarvty (1884) 26 
Ch. D. 644, 51 L. T. 608. Others 
wise where attachment is, or was, 
merely a formal incident in ozdi* 
nary dvil process. 



DISTRESS. 



849 



statutes to enter on lands and into houses for divers 
purposes, with a view to the discovery or prevention of 
crime, or of frauds upon the public revenue. We shall 
not attempt to collect these provisions. 

The right of distress, where it exists, justifies the taking DiBtiees. 
of goods from the true owner : it seems that the distrainor, I 
unlike a sheriff taking goods in execution, does not acquire! 
possession, the goods being '4n the custody of the law" (6). I 
Most of the practical importance of the subject is in con- 
nexion with the law of landlord and tenant, and we shall 
not enter here on the learning of distress for rent and other 
charges on land (c). 

Distress damage feasant is the taking by an occupier of I>unage 
land of chattels (commonly but not necessarily animals) (d) 
found encumbering or doing damage on the land, either 
to the land itself or to chattels on the land(^). The 
right given by the law is therefore a right of self-pro- 
tection against the continuance of a trespass already com- 
menced. It must be a manifest trespass ; distress damage 
feasant is not allowed against a party having any colour 
of right, e,g,y one commoner cannot distrain upon another 
commoner for surcharging (/). And where a man is law- I 



(b) See JTeit ▼. Ifibbt (1847) 4 
C. B. 172, 17L.J. C.P. 160. 

{e) As to distress in general, 
BlAdkst. Comm. book ill. o. 1. 

(d) <*A11 chattels whatever are 
distrainable damage feasant;" Gil- 
bert on Distress and Bepleyin (4th 
ed. 1823) 49. A looomotive has 
been distrained damage feasant ; 
AmbergaUf %e. E, Co, ▼. Midland 
M. Co. (1863) 2 E. & B. 793 ; it was 
not actoallj straying, but had been 
put on the Midland Company's 



line without the statutable ap- 
proval of that company. 

(e) Eo90oe v. Boden, 10 B. June, 
229 ; '94, 1 Q. B. 608, nom. Boden 
y. Botcoe. 

(/) Cape V. 8eoU (1874) L. E. 9 
Q. B. 269, 43 L. J. Q. B. 66. It 
is settled that a commoner can dis- 
train the cattle of a stranger, not- 
withstanding that an action of 
trespass would not lie (22 Ass. pi. 
48) for the disturbance. 



350 WBONOS TO POSSESSION AND PEOPEBTT. 

» follj driTing oattle along a Iiigliwaj, and some of them 
f straj from it into ground not f enoed off from the waj, he 
is entitled to a reasonable time for driving them out before 
the oooupier maj distrain, and is excused for following 
them on the land for that purpose. What is reasonable 
time is a question of fact, to be determined with reference 
to aU the circumstances of the transaction {g). And where 
cattle stray bj reason of the defect of fences which the 
occupier is bound to repair, there is no actionable trespass 
and no right to distrain until the owner of the cattle has 
notice (A). In one respect distress damage feasant is more 
favoured than distress for rent. '' For a rent or service 
the lord cannot distreine in the night, but in the day time : 
and so it is of a rent charge. But for damage feasant one 
may distreine in the night, otherwise it may be the beasts 
I will be gone before he can take them '' (t). But in other 
respects " damage feasant is the strictest distress that is, for 
the thing distrained must be taken in the very act,'' and 
held only as a pledge for its own individual trespass, and 
other requirements observed. Distress damage feasant 
suspends the right of action for the trespass (A;). 

The right of distress damage feasant does not exclude 
the right to chase out trespassing beasts at one's elec- 
tion (/), or to remove inanimate chattels and replace them 
on the owner's land (m). 

^^i^ Entry to take a distress must be peaceable and without 
breaking in ; it is not lawful to open a window, though 



(ff) Goodwin t. Chweley (1859) 4 damage feasant generallj aze ex- 

H. & N. 631, 28 L. J. Ex. 298. pounded, and see p. 356, below. 

(A) 2 Wma. Sannd. 671. (/) TyrringhanCt Ca,, 4 Co. Bep. 

(i) Co. litt. 142 a. 88 b. 

{k) Vatpor t. Edwards (1701) 12 (m) B0a ▼. 8h4Wiird (1839) 2 M. 

Hod. 660, where the inddeDtB oi ft W. 424. 



JUSTIFICATION BY NECESSITY. 



351 



Trei 



not fastened, and enter thereby (n). Distrainors for rent 
have been largely holpen bj statute, but the common law 
has not forgotten its ancient strictness where express statu- 
tory provision is wanting. 

In connexion with distress the Acts for the prevention 
of cruelty to animals have introduced special justifications : 
any one may enter a pound to supply necessary food and 
water to animals impounded, and there is an eventual 
power of sale, on certain conditions, to satisfy the cost 
thereof (o). 

Finally there are cases in which entry on land without 
consent is excused by the necessity of self-preservation, or 
the defence of the realm (p), or an act of charity pre-|^*^* 
serving the occupier from irremediable loss, or sometimes 
by the public safety or convenience, as in putting out fires, 
or as where a highway is impassable, and passing over the 
land on either side is justified ; but in this last-mentioned 
case it is perhaps rather a matter of positive common right 
than of excuse (q). Justifications of this kind are discussed 
in a case of the early sixteenth century, where a parson 
.u^ for ire^ in 1^ .™,hi. ol. ^ O^Len- 
dant justified on the groimd that the com had been set out 
for tithes and was in danger of being spoilt, wherefore he 
took it and carried it to the plaintiJS's bam to save it : to 



iTespaaseB 
lofltined 



neoeB- 



(ft) ITaih ▼. Lueoi (1867) L. B. 2 
Q. B. 690. Otherwise where the 
window is alreadj partly open: 
Crabtree y. SoHnton (1886) 16 Q. B. 
B. 312, 54 L. J. Q. B. 644. 

(o) 12 & 13 Yiot. 0. 92, B. 6 ; 17 
& 18 Yiot. o. 60, 8. I ; superseding 
an earlier Act of William IV. to 
the same effect. See Fisher^s 
Digest, D18TBB88, a. t. ** Found and 
Poundage." 



(p) See p. 167, aboye. 

{q) The justification or right, 
whicheyer it be, does not applj 
where there is onlj a limited dedi- 
cation of a waj, subject to the 
right of the owner of the soil to do 
acts, such as ploughing, which 
make it impassable or inconyenient 
at certain times : Arnold y. Sol' 
brook (1873) L. B. 8 Q. B. 96, 42 
L. J. Q. B. 80. 



362 



WB0NG8 TO POSSESSION AND PBOPERTT. 



which the plaintiff demurrecL Kingsmill J. said that a 
taking without ocmsent must be justified either bj public 
neoessityy or '' by reason of a condition in law " ; neither 
of which grounds is present here; taking for the true 
owner's benefit is justifiable only if the danger be such that 
he will lose his goods without remedy if they are not taken. 
As examples of public necessity, he gives pulling down 
some houses to save others (in case of fire, presumably) (r), 
and entering in war time to make fortifications. ^' The 
defendant's intention/' said Bede C. J., *' is material in 
felony but not in trespass ; and here it is not enough that 
he acted for the plaintiff's good." A stranger's beasts 
might have spoilt the com, but the plaintiff would have 
had his remedy against their owner. ^^ So where my 
beasts are doing damage in another man's land, I may 
not enter to drive them out ; and yet it would be a good 
deed to drive them out so that they do no more damage ; 
but it is otherwise if another man drive my horses into a 
stranger's land where they do damage, there I may justify 
entry to drive them out, because their wrong-doing took 
its beginning in a stranger's wrong. But here, because 
the party might have his remedy if the com were anywise 
destroyed, the taking was not lawful. And it is not like 
the case where things are in danger of being lost by water, 
fire, or such like, for there the destruction is without remedy 
against any man. And so this plea is not good" («). 



(r) Cp. Littleton J. in Y. B. 9 
Ed. rV. 36 ; ''If a man bp negligine$ 
suffer hiB houae to bom, I who am 
hifl neighbour maj break down the 
house to avoid the danger to me, 
for if Ilet the house stand, it maj 
bum so that I cannot quench the 
fize afterwards." 

(») 21 Hen. VII. 27, pi. 5 (but 
the case seems really to belong to 



Hilary term of the next year, see 
8, C.y Eeilw. 88 a; Frowike was 
still Chief Justice of Common Pleas 
in Trinity term 21 Hen. VII., %h, 
86 h, pi. 19 ; he died in the follow- 
ing vacation, and Rede was ap- 
pointed in his stead, \b, 85 &, where 
for Mich. 22 Hen. VII. we should 
obviously read 21) ; cp. 37 Hen. VI. 
37, pi. 26; 6 Ed. IV. 8, pi. 18, which 



TKESPAflS AB INITIO. 383 

Fiflher J. oononrred. There is little or nothing to be 
added to the statement of the law, though it may be 
doubted whether it is now likelj ever to be striotlj 
applied. Excuse of this kind is always more readily 
allowed if the possessor of the land has created or con- 
tributed to the necessity by his own fault, as where the 
grantor of a private right of way has obstructed it so that 
the way cannot be used except by deviation on his adjacent 
land it). 

At one time it was supT)osed that the law justified Fozhnnt- 

ingp not 

entering on land in fresh pursuit of a fox, because the myi- 
destruction of noxious animals is to be encouraged; but ^^^' 
this is not the law now. If it ever was, the reason for it 
has long ceased to exist {u). Practically foxhunters do 
well enough (in this part of the United Kingdom) with 
licence express or tadt. 

There is a curious and rather subtle distinction between TrespaM 

■ • - ■ 

justification by consent and justification or excuse under 
authority of law. A possessor by consent, or a licensee, 
may commit a wrong by abusing his power, but (subject 
to the peculiar exception in the case of letting or baihnent 
at will mentioned above) {x) he is not a trespasser. If I 
lend you a horse to ride to York, and you ride to Carlisle, 
I shall not have (under the old forms of pleading) a 
general action of trespass, but an action on the case. So 
if a lessee for years holds over, he is not a trespasser, 
because his entry was authorized by the lessor (y). But 

BeeiDB to extend the jastifioation to {t) Selhyy, Nettlsfold{lS7Z) L. B. 

entry to retake gooda which have 9 Ch. Ill, 43 L. J. Ch. 359. 
oome on another's land by inevit- (m) Foul v. SumrnerhayM (1878) 4 

able aoddent ; see Story, BaU- Q. B. D. 9, 48 L. J. M. C. 33. 
ments, { 83 a, note. (x) P. 332, above. 

(y) 21 Ed. IV. 76 h, pi. 9. 

P. A A 



354 



WEONGS TO POSSESSION AND PBOPERTY. 



I" when entry, authority, or licence is given to any one by 
the law, and he doth abufie it, he shall be a trespaflser 
ab initio" that is, the authority or justification is not only 
determined, but treated as if it had never existed. ^* The 
law gives authority to enter into a common inn or 
tavern (s) ; so to the lord to distrain ; to the owner of the 
ground to distrain damage feasant ; to him in reversion to 
see if waste be done ; to the commoner to enter upon the 
land to see his cattle; and such like • • • . But if he 
who enters into the inn or tavern doth a trespass, as if he 
carries away anything; or if the lord who distrains for 
rent (a), or the owner for damage feasant, works or kills 
the distress ; or if he who enters to see waste breaks the 
house or stays there all night ; or if the commoner cuts 
down a tree ; in these and the like cases the law adjudges 
that he entered for that purpose, and because the act which 
demonstrates it is a trespass, he shall be a trespasser ab 
initio " (6). Or to state it less artificially, the effect of an 
authority given by law without the owner's consent is to 
protect the person exercising that authority from being 
dealt with as a trespasser so long — ^but so long only — ^as 
the authority is not abused. He is never doing a fully 
lawful act : he is rather an excusable trespasser, and be- 
comes a trespasser without excuse if he exceeds his autho- 
rity (c) : '4t shall be adjudged against the peace" (d). 
This doctrine has been applied in modem times to the lord 



(<) This is in respect of the 
public character of the innkeeper's 
emplojrment. 

(a) The liability of a distrainor 
for rent justly due, in respect of 
any subsequent irregularity, was 
reduced to the real amount of 
damage by 11 G^. II. o. 19, s. 19 : 
but this does not apply to a case 
where the distress was wholly un- 



lawful: Attack Y. BramwU (1863) 
3 B. & S. 520, 32 L. J. Q. B. 146. 
Distrainors for damage feasant are 
still under the common law. 

{b) The Six Carpenters* Cote, 8 
Co. Rep. 146 0, b, 

{e) Gp. Pollock and Wright on 
Possession, 144, 201. 

(rf) U Hen. IV. 76, pi. 16. 



TRESPASS AB INITIO. 356 

of a manor taking an estraj {e), and to a aheiiff remaining 
in a hoiiBO in possession of goods taken in ezeoution for an 
unreasonably long time (/). It is applicable onlj when 
there has been some kind of active wrong-doing ; not when 
there has been a mere refusal to do something one ought 
to do — as to pay for one's drink at an inn {g) or deliver 
up a distress upon a proper tender of the rent due (A). '^ If 
I distrain for rent, and afterwards the termor offers me 
the rent and the arrears, and I withhold the distress from 
him, yet he shall not have an action of trespass against 
me, but detinue, because it was lawful at the beginning, 
when I took the distress ; but if I kill them or work them 
in my own plow, he shall have an action of trespass '^ {%). 
But it is to be observed that retaining legal possession 
after the expiration of authority has been held equivalent 
to a new taking, and therefore a positive act : hence (it 
seems) the distinction between the liability of a sheriff, 
who takes possession of the execution debtor's goods, and 
of a distrainor ; the latter only takes the goods into *' the 
custody of the law," and '^ the goods being in the custody 
of the law, the distrainor is under no legal obligation 
actively to re-deliver them " ijc). Formerly these refine- 
ments were important as determining the proper form of 
action. Under the Judicature Acts they seem to be obso- 
lete for most purposes of civil liability, though it is still 
possible that a question of the measure of damages may 
involve the point of trespass ab initio. Thus in the case 
of the distrainor refusing to give up the goods, there was 

(9) OxUyY, WatU (1786) 1 T. B. (^) Six Carpmters' Com, note {b), 

12, 1 R. B. 188. (A) JFett ▼. Nibbt (1847) 4 O.B. 

(/) Ath T. Dawnap (1862) 8 Ex. 172» 17 L. J. 0. P. 160. 

287, 22 L. J. Ex. 59, ted qu. (i) Littleton in 33 Hon. VI. 27, 

if according to the old authorities, pi. 12. 

see Pollock and Wzight on Foflaes- (k) West y. Nihbt, 4 0. B. at 

sion, 82. p. 184, per Wilde C. J. 

aa2 



366 WBONQS TO POSSESSION AKD PROPERTY. 

no doubt that trover or detinue would lie (/) : so that 
under the preeent praotioe there would be nothing to 

X. — Semedies, 

Taking or The onlj peculiar remedy available for this elan of 
goods. wrongs is distress damage feasant, which, though an im- 
perfect remedjy is so far a remedj that it suspends the 
right of action for the trespass. The distrainor *^ has an 
adequate satisfaction for his damage till he lose it without 
default in himself ; " in which case he maj still have his 
action (m). It does not seem that the retaking of goods 
taken bj trespass extinguishes the true owner's right of 
action, though it would of course affect the amount of 
damages. 

Costs Actions for merely trifling trespasses were formerly dis« 

damages couraged bj statutes providing that when less than 40ff. 
nomuaL ^^j^ recovered no more costs than damages should be 
allowed except on the judge's certificate that the action 
was brought to try a right, or that the trespass was ^^ wil- 
ful and malicious : " yet a trespass after notice not to tres- 
pass on the plaintiff's lands was held to be *' wilful and 
malicious," and special communication of such notice to 
the defendant was not required (n). But these and many 
other statutes as to costs were superseded by the general 
provisions of the Judicature Acts, and the rule that a 
plaintiff recovering less than 10/. damages in an action 

(/) Wilde G. J. /. e,f littleton 11, even where the defendant had 

tibi 9up. intended and endeayoured to aToid 

(m) Vaapor ▼. Edtcardtf 12 Mod. treepasaing ; bat this waa doubted 

660, per Holt G. J. by PoUook G. B. in Swinfm y. 

(ft) See Bowyer v. Cook (1847) 4 Bacon (1860) 6 H. & N. 184, 188, 

G. B. 236, 16 L. J. G. F. 177 ; 80 L. J. £x. 38, 36. 
Btynoldt ▼. Bdwtrdi (1794) 6 T. B. 



REMEDIES FOB TRESPASS^ 357 

" founded on tort ** gets costs only on the County Court 
scale, unless by special certificate or order (o) ; and Uiey are 
now expressly repealed (p). 

The Court is therefore not bound by any fixed rule ; but 
it might possibly refer to the old practice for the purpose 
of informing its discretion. It seems likely that the 
common practice of putting up notice boards with these or 
the like words : ^' Trespassers will be prosecuted according 
to law " — words which are " if strictly construed, a wooden 
falsehood " {q)j simple trespass not being punishable in 
courts of criminal jurisdiction — was originally intended to 
secure the benefit of these same statutes in the matter of 
costs. At this day it may be a question whether the 
Court would not be disposed to regard the threat of an 
impossible criminal prosecution as a fraud upon the public, 
and rather a cause for depriving the occupier of costs than 
for awarding them (r). Several better and safer forms of 
notice are available ; a common American one, '* no tres- 
passing," is as good as any. 

"Nothing on earth," said Sir Walter Scott, "would 
induce me to put up boards threatening prosecution, or 
cautioning one's fellow-creatures to beware of man-traps 
and spring-guns. I hold that all such things are not only 
in the highest degree oflPensive and hurtful to the feelings 
of people whom it is every way important to conciliate, 
but that they are also quite inefficient " («). It must be 
remembered that Scott never ceased to be a lawyer as well 



(o) County Courts Act, 1888, (r) At all events the tlireat of 

8. 116 (sabstitnted for like pro- spxing-gxinB, still not qnite un* 

▼iaioDBof the repealed Acts of 1867 known, oan do tlie oocnpier no 

and 1 882) ; see ' * The Annual Prao'' good, for to set spring-gpins is itself 

tioe," 1896, p. 188 $qq. an offence^ 

{p) 42 A 43 Vict. o. 69. («) Lookhart's Life of Soott, yii. 

Ig) F. W. Kaitland, << Justice 317, ed. 1839, m; relatione BasQ 

and PoUce,'* p. 18. Hall. 



368 WRONGS TO POSSESSION AND PROPERTY. 

as a man of letters. It was partlj the legal knowledge 
and tastes displayed in the Waverlej Novels that identified 
him in the eyes of the hest eritios as the author. 

iDjnno- An injunction can be granted to restrain a oontinuing 

trespass, suoh as the laying and keeping of waterpipes 
under a man's groxmd without either his consent or justifi- 
cation by authority of law; and the plaintifi need not 
prove substantial damage to entitle himself to this form of 
relief (t) On the other hand the right to an injonction 
does not extend beyond the old common-law right to sue 

If or damages : a reversioner cannot have an injunction 
without showing permanent injury to the reversion (u). 

Of course it may be a substantial injury, though without 
any direct damage, to do acts on another man's land for 
one's own profit without his leave ; for he is entitled to 
make one pay for the right to do them, and his power of 
withholding leave is worth to him precisely what it is 
worth to the other party to have it (x). 

Effect of Before the Common Law Procedure Acts an owner, 
pr^bi^ tenant, or reversioner who had suffered undoubted injury 
might be defeated by bringing his action in the wrong 
form, as where he brought trespass and failed to show 
that he was in present possession at the time of the wrong 
done (y). But such cases can hardly occur now. 

(t) Ooodton T. Siehardton (1874) {x) See L. R. 9 Ch« 224, 20 Gh. 

L. R. 9 Oh. 221, 43 L. J. Ch. 790. Div. 692. 

(m) Cooper y, Orabiree (1882) 20 (y) Broum y. KotUy (ISiS) 3 Ex. 

Ch. DiT. 589, 61 L. J. Gh. 686. 221, 18 L. J. Ex. 39 ; JPUffrim y, 

In Attm Y. Martin (1876) 20 Eq. SouthumpUm, ^. M. Cto. (1849) 8 

462, the pUdntifls were in poesea- 0. B. 26, 18 L. J. G. P. 330. 
sion of part of the land aileoted. 



859 



OHAPTEB X. 



NUISANCE. 



NuiSANCB ifl the ^yrong done to a ma n b y unla wf ully dis- Nuimnoe 
turbing him in the enjojment of tdg proper t y or, in some pSvate?' 
cases, in th e exercise of a common richt. The wronc: is 
in some respects analogous to trespass, and the two maj 
coincide, some kinds of nuisance being also continuing 
trespasses. The scope of nuisance, however, is wider. A 
nuisance maj be public or private. 

Public or common nuisances affect the Queen's subjects 
at large, or some considerable portion of them, such as the 
inhabitants of a town ; and the person therein offending is I 
liable to criminal prosecution {a). A public nuisance does ' 
not necessarily create a civil cause of action for any 
person; but it may do so under certain conditions. A 
private nuisance affects only one person or a determinate 
number of persons, and is the ground of civil proceedings 
only. Generally it affects the control, use, or enjoyment 
of immoveable property; but this is not a necessary 
element according to the modem view of the law. Cer- 
tainly the owner or master of a ship lying in harbour, for 
example, might be entitled to complain of a nuisance 

(a) There was fonnerlj a mazi- Bench Divimon fltUl has in theory 

datory "writ for the abatement of jorisdiotion to grant auoh writs (as 

publio niiisanoes in cities and cor- distinct from the common Judg- 

porate towns and boronghs. See ment on an indictment) ; see Bus- 

the curious precedent in F. N. B. sell on Crimes, i. 440. 
185 D. Apparently the Queen's 



360 KUiaAKCE. 

created bj an occupier on the wharf or shore which made 
the ship uninhabitable. 

^7f ^ We shall first consider in what cases a common nuisance 

right of 

action for exposes the person answerable for it to civil as well as 
noiaazioe. criminal process, in other words, is actionable as well as 
indictable. 

** A common nuisance is an unlawful act or omission to 
IdiBcharge a legal duty, which act or omission endangers 
the lives, safety, health, property, or comfort of the public, 
or by which the public are obstructed in the exercise or 
enjoyment of any right common to all her Majesty's 
'subjects" (6). Omission to repair a highway, or the 
placing of obstructions in a highway or public navigable 
river, is a familiar example. 

In order to sustain an indictment for nuisance it is 
enough to show that the exercise of a common right of the 
Queen's subjects has been sensibly interfered with. It is 
no answer to say that the state of things causing the 
obstruction is in some other way a public convenience. 
Thus it is an indictable nuisance at common law to lay 
down a tramway in a public street to the obstruction of the 
ordinary traffic, although the people who use the cars and 
save money and time by them may be greater in number 
than those who are obstructed in their use of the highway 
in the manner formerly accustomed (c). 

It is also not material whether the obstruction interferes 
with the actual exercise of the right as it is for the time 
being exercised. The public are entitled, for example, to 

{b) Grimmal Code (Indiotable («) It, ▼. Train (1862) 2 B. ft 8. 

Offences) BUI, 1879 (as amended in 640, 31 L. J. M. 0. 169. The 

Committee), s. 160; op. Stephen, tramways now in operation in 

Digest of Criminal Law, art. 176, many cities and towns have been 

and illustrations thereto, and the made nnder statutory authority. 
Indian Penal Code, b. 268. 



PABTICULAB DAMAGE. 



B61 



have the whole width of a public road kept free for passing 
and repassing, and an obstruction is not the less a nuisance 
because it is on a part of the highway not commonly used, 
or otherwise leaves room enough for the ordinary amount 
of traffic {d). 

Further discussion and illustration of what amounts to 
an indictable nuisance must be sought in works on the 
oriminal law. 

A private action can be maintained in respect of a public Special 
nuisance by a person who suffers thereby some particular must be 
loss or damage beyond what is suffered by him in common ^^^^' 
with all other persons affected by the nuisance. Inter- 
ference with a common right is not of itself a cause of 
action for the individual citizen. Particula r dai^^ g^ (e) 
consequent on the interference is. If a man ditrs a trench 
across a highway, I cannot sue him simply because the 
trench prevents me from passing along the highway as I 
am entitled to do ; for that is an inconvenience inflicted 
equally on all men who use the road. But if, while I am 
lawfully passing along after dark, I fall into this trench 
so that I break a limb, or goods which I am carrying are 
spoiled, I shall have my action ; for this is a particular 
damage to myself resulting from the common nuisance, 
and distinct from the mere obstruction of the common 
right of passage whidi constitutes that nuisance (/). If 



(d) Twmer y. Bif%gwood Highwuy 
Board (1870) 9 Eq. 418. Compare 
the similar doctrine as to obstruo'- 
tion of lights, iirfra, 

(e) << Partionlar damage" and 
"special damage" are used in- 
diflerentlj in the authorities ; the 
former seems preferable, for '^ spe- 
oial damage," as we have seen, has 
another technical meaning in the 



law of defamation. 

(/) Y. B. 27 Hen. VIII. 27, pi. 
10. Action for stopping a high- 
waj, wherebj it seems the plaintiff 
was deprived of the use of his own 
private way abutting thereon (the 
statement is rather obscure) : per 
Fitzherbert, a man shall have his 
action for a public nuisance if he 
is more incommoded than others. 



862 



NUISANCE. 



a trader is oonTejing his gooda in baif^ along a navigable 
riveTi and by reason of the navigation being nnlawfullj 
obBtnicted has to unload his merchandise and oany it 
overland at an increased expense, this is a partioolar 
damage which gives him a right of action (g). Though it 
is a sort of consequence likely to ensue in many individual 
cases, yet in every case it is a distinct and specific one. 
Where this test fails, there can be no particular damage 
in a legal sense. If the same man is at divers times 
delayed by the same obstruction, and incurs expense in 
removing it, this is not of itself sufficient particular 
damage ; the damage, though real, is '' common to all who 
might wish, by removing the obstruction, to raise the 
question of the right of the public to use the way " (A). 
The diversion of traffic or custom from a man's door by an 
obstruction of a highway, whereby his business is inter- 
rupted, and his profits diminished, seems to be too remote 
a damage to give him a right of private action (t), unless 
indeed the obstruction is such as materially to impede the 
immediate access to the plaintiff's place of business more 
than other men's, and amounts to something like blocking 



*' If one make a ditoh aoroas the 
high road, and I oome riding along 
the road at night, and I and my 
hone are thrown in the ditoh bo 
that I ha^e thereby great damage 
and annoyance, I shaU ha^e my 
action against him -who made this 
ditoh, because I am more damaged 
than any other man." Held that 
sufficient partioular damage was 
laid. 

(g) Rater. MiU$ (1815) 4 M. ft 
S. 101, 16 B. B. 405, and in Bigebw 
L. G. 460. 

(A) WinUrboitom t. Lord Derby 
(1867) L. B. 2 Ex. 316, 822, 36 
L. J. Ex. 194. 



(i) RUket ▼. Metrop, R. Co, (1867) 
L. B. 2 H. L. at pp. 188, 199. See 
the comments of WiUes J. in Beckett 
T. Midland R. Co, L. B. 3 C. P. at 
p. 100, where WiVeee t. Hungerford 
Market Co. (1835) 2 Bing. N. G. 
281 is treated as overruled by the 
remarks of Lord Ghelmsford and 
Lord Granworth. Probably thia 
would not be aooepted in other 
jurisdictions where the common 
law is received. In Massachusetts, 
at least, Wilket t. Hungerford 
Market Co. was adopted by the 
Supreme Gourt in a yery full and 
careful judgment : Stettonr. Faxon 
(1837) 19 Pick. 147. 



PiayATB NUISANCES. 



863 



np his doorway (A;). Whether a given oase falls under the 
rule or the exception must depend on the facts of that 
ease : and what is the true principle, and what the extent 
of the exceptiany is open to some question (/). If horses 
and waggons are kept standing for an unreasonable time 
in the highway opposite a man's house, so that the access 
of customers is obstructed, the house is darkened, and the 
people in it are annoyed by bad smells, this damage is 
sufficiently '^ particular, direct, and substantial " to entitle 
the occupier to maintain an action (m). 

The conception of private nuisance was formerly limited PriTate 
to injuries done to a man's freehold by a neighbour's acts, ^hat. 
of which stopping or narrowing rights of way and flooding 
land by the diversion of watercourses appear to have been 
the chief species (n). In the modem authorities it includes 
all injuries to an owner or occupier in the enjoyment of 
the property of which he is in possession, without regard 
to the quality of the tenure (o), Blackstone's phrase is 



{k) IHtM y. MobBon (1880) 14 Ch. 
D. 642, 49 L. J. Ch. 821 ; Barber 
T. Fenley, '93, 2 Ch. 447, 62 L. J. 
Ch. 623, 3 B. 489. 

{I) In Fritz ▼. Sobion (last note) 
Try J. did not lay down any general 
proposition. How far the principle 
of Lyon ▼. FUhmongert^ Company 
(1876) 1 App. Ca. 662, 46 L. J. 
Ch. 68, is really oonsiBtent with 
Bieket ▼. Metrop, J{. Cb. ia a prob- 
lem that can be finally solved only 
by the Honse of Lords itself. Ac- 
cording to Lyon t. Fuhmonffers' 
Company it should seem that block- 
ing the access to a street is (if not 
justified) a violation of the distinct 
private right of every occupier in 
the street : and such rights are not 
the less private and distinct because 
they may be many ; see Sarrop v. 



Birti (1868) L. B. 4 Ex. 43, 38 L. 
J. Ex. 1. In this view it is difii- 
cult to see that loss of custom is 
otherwise than a natural aud prob- 
able consequence of the wrong. 
And cp. the case in 27 Hen. VIIL 
dted above, p. 361. In RiekeCt ea. 
Lord Westbniy strongly dissented 
from the majority of the Lords 
present ; L. B. 2 H. L. at p. 200. 

(m) Bonjamin v. Storr (1874) L. 
B. 9 C. P. 400, 43 L. J. C. P. 162. 
Compare further, as to damage 
from unreasonable user of a high- 
way, Sarrii v. Mobbi (1878) 3 Ex. 
D. 268 ; JFilkint v. Day (1883) 12 
Q. B. D. 110. 

(n) F. N. B. " Writ of Assize of 
Nuisance," 183 I. iqq. 

{o) See per Jessel l£. B. in Jonet 
V. ChappoU (1876) 20 Eq. at p. 543. 



864 NUIfiANCE. 

* * anything done to the hurt or annoyance of the land, 
tenements or hereditaments of another'' (p) — that is, so 
done without any lawful ground of justification or excuse. 
The ways in which this may happen are indefinite in 
number, but fall for practical purposes into certain well 
recognized classes. 



Kinds of 
naisanoe 



Some acts are nuisances, according to the old authorities 
affect- and the course of procedure on which they were founded, 
1. Owner- ^hich involve such direct interference with the rights of a 
"^P* possessor as to be also trespasses, or hardly distinguishable 
from trespasses. *^ A man shall have an assize of nuisance 
for building a house higher than his house, and so near 
his, that the rain which falleth upon that house f alleth 
upon the plaintiff's house " (q). And it is stated to be a 
nuisance if a tree growing on my land overhangs the 
public road or my neighbour's land (r). In this class of 
cases nuisance means nothing more than encroachment on 
the legal powers and control of the public or of one's 
neighbour. It is generally, though not necessarily («), a 
continuing trespass, for which however, in the days when 
forms of action were strict and a mistake in seeking the 
proper remedy was fatal, there was a greater variety and 
choice of remedies than for ordinary trespasses. There- 
fore it is in such a case needless to inquire, except for the 
assessment of damages, whether there is anything like 
nuisance in the popular sense. Still there is a real distinc- 
tion between trespass and nuisance even when they are 
combined : the cause of action in trespass is interference 
with the right of a possessor in itself, while in nuisance it 

{p) Gomm. iii. 216. (r) Best J. in Earl of LontdaU y. 

\q) F. N. 6. 184 D. ; F^md- Helton (1823) 2 B. ft G. 802, 311. 
doek*s ea. 6 Go. Rep. 100 5 ; Fay y. («) PayY. Prentieey note iq)y where 

Frmtict (1846) 1 G. B. 829, 14 L. J. the Gonrt was astute to support 

0. P. 298. the declaration after verdiot. 



OTHER KINDS OF NUISANCES. 365 

IB the inoommoditj whioh is proved in faot to be the 
oonsequenoe, or ia presumed by the law to be the natoral 
and necessary oonsequenoe, of suoh interference : thus an 
overhanging roof or oomioe is a nuisanoe to the land it 
overhangs beoause of the neoessarj tendency to discharge 
rain-water upon it (t). 

Another kind of nuisance consists in obstructions of 2. lura in 
rights of way and other rights over the property of others. 
^* The parishioners may pull down a wall which is set up 
to their nuisanoe in their way to the church " (u). In 
modem times the most frequent and important examples 
of this class are cases of interference with rights to light. 
Here the right itself is a right not of dominion, but of 
use ; and therefore no wrong is done (r) unless and tmtil 
there is a sensible interference with its enjoyment, as we 
shall see hereafter. But it need not be proved that the 
interference causes any immediate harm or loss. It is 
enough that a legal right of use and eojoyment is inter- 
fered with by conduct which, if persisted in without 
protest, would furnish evidence in derogation of the right 
itself (it). 

A third kind, and that which is most commonly spoken 8. Con- 
of by the technical name, is the continuous doing of some- ]^d^^joT- 
thing which interferes with another's health or comfort in ™®"*' 
the occupation of his property, such as carrying on a noisy 
or offensive trade. Continuity is a material factor : merely 
temporary inconvenience caused to a neighbour by "the 
execution of lawful works in the ordinary user of land " is 
not a nuisance (or). 

(0 Batm's ea. 9 Go. Bep. 63 b. (w) Earrop t. Hint (1868) L. B. 

(«) F. N. B. 186 B. 4 Ex. 43, 38 L. J. £z. 1. 

(9) Otherwise m to pablio ways ; {x) Hurrittm y. Stmthwark f 

flee Tunur y. Eingtcood Mighway Vauxhall Water Co,, '91, 2 Ch. 409, 

Soard (1870) 9 £q. 418. 60 L. J. Oh. 630. 



366 



NUISANCE. 



Measoreof 
naisaaoe. 



Injury to 
health 
need not 
be shown. 



Plaintiff 
not disen- 
titled by 
having 
come to 
the noi- 
sanoe. 



What amount of annojanoe or inoonyenienoe will 
amount to a nuiaanoe in point of law cannot, by the nature 
of the question, be defined in preoiJBe terms (y). Attempts 
have been made to set more or less arbitrary limits to the 
jurisdiotion of the Court, especially in oases of misoel* 
laneous nuisance, as we may call them, but they have 
failed in every direction. 

(a) It is not necessary to constitute a private nuisance 
that the acts or state of things complained of should be 
noxious in the sense of being injurious to health. It is 
enough that there is a material interference with the 
ordinary comfort and convenience of life — " the physical 
comfort of human existence '' — by an ordinary and reason- 

Iable standard (z) ; there must be something more than 
mere loss of amenity (a), but there need not be positive 
hurt or disease. 

(b) In ascertaining whether the property of the plain- 
tiS is in fact injured, or his comfort or convenience in 
fact materially interfered with, by an alleged nuisance, 
regard is had to the character of the neighbourhood and 
the pre-existing circumstances (i). But the fact that the 
plaintiff was already exposed to some inconvenience of the 
same kind will not of itself deprive him of his remedy. 
Even if there was already a nuisance, that is not a reason 
why the defendant should set up an additional nuisance (c). 



(y) Ab to the constniotion of 
« nuisanoe " in a covenant, -which 
it teems need not be confined to 
tortious nuisance, see Tod-SetUfy 
Y. Bfnham (1888) 40 Ch. Dir. 80, 
58 L. J. Gh. 83. 

(z) Walter y. Selfe, 4 De G. ft 
Sm. 315, 321, 322, 20 L. J. Ch. 
438 (Knight-Bruce V.-C. 1851); 
Crump T. Lambert (1867) 3 Eq. 409. 



(a) Sahin t. North JBraneepeth 
Coal Co. (1874) L. R. 9 Ch. 705, 44 
L. J. Ch. 149; see judgment of 
James L. J. L. B. 9 Ch. at pp. 709, 
710. 

{b) St. Helmut Smelting Co, r. 
Tipping (1865) 11 H. L. C. 642, 35 
L. J. Q. B. 66 ; Sturget t. Bridg- 
man (1879) 11 Ch. Div. at p. 865. 

(e) Walter v. 8e\fe^ note («). 



WHAT AMOUNTS TO MUISANCE. 367 

The fact that other persons are wrong-doers in the like sort 
is no excuse for a wrong-doer. If it is said *^ This is but 
one nuisanoe among many/' the answer is that, if the 
others were away, this one remaining would dearlj be a 
wrong ; but a man cannot be made a wrong-doer bj the 
lawful acts of third persons, and if it is not a wrong now, 
a prescriptive right to continue it in all events might be 
acquired under cover of the other nuisances ; therefore it 
must be wrongful from the first (d)» Neither does it make 
any difference tha t the very nuisance comrlained of eadsted 
before th^ jj, |ti i ^ tif^ J^ficW^i^ owi ier or occupier. It was at 
one time held that if a man came to the nuisance, as was 
said, he had no remedy {e) ; but this has long ceased to 
be law as regards both the remedy by damages (/) and the 
remedy by injunction {g). The defendant may in some 
cases justify by prescription, or the plaintiff be barred of 
the most effectual remedies by acquiescence. But these 
are distinct and special grounds of defence, and if relied 
on must be fully made out by appropriate proof. 

Further, the wrong and the right of action begin only 
when the nuisance begins. Therefore if Peter has for 
many years carried on a noisy business on his own land, 
and his neighbour John makes a new building on his own 
adjoining land, in the occupation whereof he finds the 
noise, vibration, or the like, caused by Peter's business to 
be a nuisance, Peter cannot justify continuing his opera- 
tions as against John by showing that before John's 



(d) CroisUy t. LighiowUr (1867) t. Tipping (1865) 11 H. L. 0. 642, 

L. B. 2 Ch. 478, 86 L. J. Ch. 684. 35 L. J. Q. B. 66. 

The same point was (among others) is) Tipping y. Si, E$lmU Smelt' 

decided many years earlier (1849) ing Co, (1865) 1 Ch. 66, a suit for 

in Wood T. Waudy 3 Ex. 748, 18 injunction on the same facts; 

L. J. Ex. 305. Fleming v. Bielop (1886) 11 App. 

{e) Bla<5k8tone ii. 403. Ca. (So.) 686, 688, 697. 

(/) S.g, St. EeUnU Smelting Co. 



368 



NUISAKCE. 



building was ooonpied, John or his predeoessois in title 
made no oomplaint (A). 

Innocent (o) Again a nuisance is not justified by showing that 
aarjoha- the trade or occupation causing the annoyance is, apart 
M of o^- from that annoyance, an innocent or laudable one. " The 
pation^" ^^'^li^K ^f * lime-kiln is good and profitable ; but if it be 
noanawer. built SO near a house that when it bums the smoke thereof 
enters into the house, so that none can dwell there, an 
action lies for it " (t). " A tan-house is necessary, for all 
men wear shoes ; and nevertheless it may be pulled down 
if it be erected to the nmsance of another. In like manner 
of a glass-house ; and they ought to be erected in places 
convenient for them " {j). 80 it is an actionable nuisance 
to keep a pigstye so near my neighbour's house as to make 
it unwholesome and unfit for habitation, though the keep- 
ing of swine may be needful for the sustenance of man {k). 
Learned and charitable foundations are commended in 
sundry places of our books ; but the fact that a new build- 
ing is being erected by a college for purposes of good 
education and the advancement of learning will not make 
it the less a wrong if the sawing of stone by the builders 
drives a neighbouring inhabitant out of his house. 



CoDve- 
nienoe of 
plaoe per 
ae is no 

answer. 



(d) Where the nuisance complained of consists wholly 
or chiefiy in damage to property, such damage must be 
proved as is of appreciable magnitude and apparent to 
persons of common intelligence; not merely something 



(A) Sturgit v. Bridgman (1879) 
11 Gh. Diy. 852, 48 L. J. Gh. 875. 

(i) Aldred't ea. 9 Go. Rep. 59 a. 

{J) Jonn Y. Powell, Palm. 639, 
approved and explained by Ex. Oh. 
in Bamford t. Turnley (1862) 3 B. 
& S. 66, 31 L. J. Q. B. 286. Ab to 
** oonveuient " aee next paragraph. 



(k) Aldred*M ca, note (t) Gp. 
Broder y. Saillard{me) 2 Gh. D. 
092, 701 (Jeasel M. R.), 45 L. J. 
Gh. 414, foUowed and perhape ex- 
tended in Reinhardt y. Mentaeti 
(188^) 42 Gh. £>. 685, 58 L. J. Gh. 
787. 



WHAT AMOUNTS TO NUISANCE. 



360 



diflooYerable only hj scientifio tests (/). And acts in them- 
selves lawful and innoxious do not beoome a nuisance 
merely because they make a neighbouring house or room 
less fit for carrying on some particular industry, without 
interfering with the ordinary enjoyment of life {m). But 
where material damage in this sense is proved, or material 
discomfort according to a sober and reasonable standard of 
comfort, it is no answer to say that the offending work or 
manufacture is carried on at a place in itself proper and 
convenient for the purpose. A right to do something that 
otherwise would be a nuisance may be established by pre-* 
scription, but nothing less will serve. Or in other words a 
place is not in the sense of the law convenient for me to 
bum bricks in, or smelt copper, or carry on chemical works, 
if that use of the place is convenient to myself but creates 
a nuisance to my neighbour (n). 

(e) No particular combination of sources of annoyance Modes of 
is necessary to constitute a nuisance, nor are the possible anoe. 
sources of annoyance exhaustively defined by any rule of 
law. " Smoke, unaccompanied with noise or noxious vapour, 
noise alone, offensive vapours alone, although not injurious 
to health, may severally constitute a nuisance to the owner 
of adjoining or neighbouring property" (o). The persis- 



(/) Salvin t. Jforth Braneepeih 
Coal Co, (1874) L. B. 9 Ch. 705, 44 
L. J. Oh. 149. 

(m) Robimm t. Kilvert (1889) 41 
Ch. Dir. 88, 68 L. J. Ch. 392. The 
oidinazy enjoyment of life, how- 
ever, Beems to inolade the mainte- 
nance of a due temperature in one's 
wine cellar : Reinhardi t. Mmtatti 
(1889) 42 Ch. D. 685, note {k) 
above. 

(m) St, Eelen't Smelting Co, t. 
Tipping (1865) 11 H. L. G. 642, 36 

P. 



L. J. Q. B. 66, Bigelow L. C. 464 ; 
Ba^ford t. Tumley (1862) Ex. Ch. 
3 B. & S. 66, 31 L. J. Q. B. 286 ; 
Careg v. Ledbitter (1862-3) 13 C. B. 
N. 8. 470, 32 L. J. C. P. 104. These 
authorities overrule Hole v. Barlow 
(1858) 4 C. B. N. S. 334, 27 L. J. 
C. P. 207 ; see ShotU Iron Co, v. 
Inglie (1882) 7 App. Ca. So. at 
p. 528. 

(o) BomiUj M. B., Crump v. 
Lambert (1867) 3 Eq. at p. 412. 

B B 



370 



NUISANCE, 



tent ringing and tolling of large bells (p)^ the loud mnsic, 
shouting, and other noises attending the perfonnanoes of a 
circus {q)f the collection of a crowd of disorderly people by 
a noisy entertainment of music and fireworks (r), to the 
grave annoyance of dwellers in the neighbourhood, have 
all been held to be nuisances and restrained by the autho- 
rity of the Court. The use of a dwelling-house in a 
street of dwelling-houses, in an ordinary and accustomed 
manner, is not a nuisance though it may produce more or 
less noise and inconvenience to a neighbour. But the 
conversion of part of a house to an unusual purpose, or 
the simple maintenance of an arrangement which offends 
neighbours by noise or otherwise to an imusual and exces- 
sive extent, may be an actionable nuisance. Many houses 
have stables attached to them, but the man who turns the 
whole ground floor of a London house into a stable, or 
otherwise keeps a stable so near a neighbour's living 
rooms that the inhabitants are disturbed all night (even 
though he has done nothing beyond using the arrange- 
ments of the house as he found them), does so at his own 
risk («). 

« In making out a case of nuisance of this character, 
there are always two things to be considered, the right of 



(p) SoUau y. De Held (1861) 2 
Sim. K. U. 198. The bells be- 
longed to a Boman Catholic 
chturoh; the Judgment points ont 
(at p. 160) that such a bailding is 
not a chuToh in the eye of the law, 
and cannot claim the same priyi- 
leges as a parish church in respect 
of bell-ringing. 

(q) InchhaldY, Barrington (1869) L. 
B. 4 Ch. 388 : the circus was eightj- 
five yards from the plaintiff *b house, 
and *' throughout the performanoe 
there was musio, indoding a trom- 



bone and other wind instruments 
and a violoncello, and gnneat noise, 
with shouting and cracking of 
whips." 

(r) Walker y. Brewster (1867) 6 
Eq. 24, 37 L. J. Gh. 33. It was 
not decided whether the noise 
would alone have been a nuisance, 
but Wickens V.-O. strongly in- 
clined to think it would, see at 
p. 34. 

(s) BaU T. Bay (1873) L. B. 8 
Gh. 467 ; Broder v. Saillard (1876) 
2 Gh. D. 692, 46 L. J. Gh. 414. 



WHAT AMOUNTS TO NUISANCE. 371 

the plaintiff, and the right of the defendant. If the 
houses adjoining each other are so bailt that from the 
oommenoement of their existence it is manifest that each 
adjoining inhabitant was intended to enjoy his own 
property for the ordinary purposes for which it and all the 
different parts of it were oonstnicted, then so long as the 
house is so used there is nothing that can be regarded 
in law as a nuisance which the other party has a right to 
prevent. But, on the other hand, if either party turns his 
house, or any portion of it, to unusual purposes in such a 
manner as to produce a substantial injury to his neighbour, 
it appears to me that that is not according to principle or 
authority a reasonable use of his own property ; and his 
neighbour, showing substantial injury, is entitled to pro- 
tection " (0. 

(f ) Where a distinct private right is infringed, though Injury 
it be only a right enjoyed m common with other persons, the plain- 
it is immaterial that the plaintiff suffered no specific ^^^^^ 
injury beyond those other persons, or no specific injury at 
all. Thus any one commoner can sue a stranger who lets | 
his cattle depasture the common (u) ; and any one of a 3 
number of inhabitants entitled by local custom to a par- 
ticular water supply can sue a neighbour who obstructs 
that supply (r). It should seem from the ratio decidendi 
of the House of Lords in Lt/on v. Fishmongers^ Company (a?), 
that the rights of access to a highway or a navigable river 
incident to the occupation of tenements thereto adjacent 
are private rights within the meaning of this rule (y). 

(0 Lord Selbome L. C, L. B. 4 Ex. 43, 38 L. J. Ex. 1. 

8 Ch. at p. 469. W 1 App. Ca. 662. 

(m) Notes to Mellor v. Spatman, (y) Fritz r. Hobton (1880) 14 Ch. 

1 Wma. Sannd. 626. D. 642, 49 L. J. Ch. 821, supra^ 

(r) Sarrop v. Eint (1868) L. R. p. 363. 

bb2 



372 



NUISANCE. 



Injury 
caused by 
indepen- 
dent nets 
vf differ- 
ent per- 
sons. 



Obetruo« 
Hon of 
lights. 



Katnre of 
the right. 



(g) A cauBe of action for nuisanoe may be created by 
I independent acts of different persons, though the acts of 
any one of those persons would not amount to a nuisance. 
" Suppose one person leaves a wheelbarrow standing on a 
way, that may cause no appreciable inoonyenience, but if 
a hundred do so, that may cause a serious inconvenience, 
which a person entitled to the use of the way has a right 
to prevent ; and it is ho defence to any one person among 
the hundred to say that what he does causes of itself no 
damage to the complainant " (z). 

A species of nuisance which has become prominent in 
modem law, by reason of the increased closeness and 
height of buildings in towns, is the obstruction of light : 
often the phrase '* light and air " is used, but the addition 
is useless if not misleading, insBmuch as a specific right to 
the access of air over a neighbour's land is not known to 
the law as a subject of property (a). 

It seems proper (though at the risk of digressing from 
the law of Torts into the law of Easements) to state here 
the rules on this head as settled by the decisions of the 
last twenty years or thereabouts. 

The right to light, to begin with, is not a natural right 
incident to the ownership of windows, but an easement to 
which title must be shown by grant ((), express or implied, 



(s) Thorpe v. Brumfitt (1873) L. B. 
8 Ch. 650, 656, per James L. J., 
followed by Chitty J. in Zambton 
T. Mellith, '94, 3 Ch. 163 (a case of 
nuisance by noise). 

(a) City of London Brewery Co. 
T. Tennant (1873) L. B. 9 Ch. at p. 
221 ; Webb r. ^trrf(1862) Ex. Ch. 13 
C. B. N. 8. 841, 31 L. J. C. P. 336 ; 
Bryant v. Lefever (1879) 4 C. P. 
Diy. 172, espeoially per Cotton 
L. J. at p. 180, 48 L. J. Ch. 380 ; 



HarrU t. De Pinna (1886) 33 Ch. 
Dir. 238, per Chitty J. at p. 260, 
and Cotton L. J. at p. 269. A 
personal right to access of air can 
of course be created as between 
parties, if they choose, by way of 
covenant. 

(b) Notwithstanding the doubts 
expressed by Littledale J. in Moore 
T. Baweon (1824) 3 B. & C. at p. 
340 : see per Lord Selbome, Dalton 
y. Angus (1881) 6 App. Ca. at p. 



OBSTRUOTION OF LIGHTS. 



sri 



or by prescription at oommon law, or under the Prescrip- 
tion Act. The Prescription Act has not altered the 
nature or extent of the right, but has only provided a new 
mode of acquiring and claiming it(c), without taking 
away any mode which existed at common law (d). The 
right can be claimed only in respect of a building ; the use 
of an open piece of ground for a purpose requiring light 
will not create an easement against an adjacent owner (e). 

Assuming the right to be established, there is a wrongful Any sab- 
disturbance if the building in respect of which it exists is diminu- 
so far deprived of access of light as to render it materially ^Jy * 
less fit for comfortable or beneficial use or enjoyment in 
its existing condition ; if a dwelling-house, for ordinary 
habitation; if a warehouse or shop, for the conduct of 
business (/). 

This does not mean that an obstruction is not wrongful 
if it leaves sufficient light for the conduct of the business 
or occupation carried in the dominant tenement for the 
time being. The question is not what is the least amount 
of light the plaintiff can live or work with, but whether 
the light, as his tenement was entitled to it and enjoyed 
it, has been substantially diminished. Even if a subdued 
or reflected light is better for the plaintijff's business than 
a direct one, he is not the less entitled to regulate his 
light for himself (g). 



794, and Lord Blackbnin, ib, 823, 
and the judgements and opinions in 
that case pattim as to the peooliar 
dharacter of negative easements. 

(e) Kelk y. Pearson (1871) L. R. 
6 Ch. at pp. 81 1, 813, d. 9 Ch. 219. 

(d) Ayntleyy. Olover (1875) L. B. 
10 Ch. 283, 44 L. J. Ch. 623. Since 
the Ftesoription Act, however, the 
lonnerly accustomed method of 



claiming nndar the fiction of a lost 
grant appears to be obsolete. 

(e) See I^tts y. Smith (1868) L. B. 
6 Eq. 311, 318, 38 L. J. Ch. 68. 

(/) Kelk V. Pearson (1871) L.R. 6 
Ch. 809, 811; City of London Brewery 
Co, T. Tennant (1873) L. R. 9 Ch. at 
p. 216, 43 L. J. Ch. 467. 

(g) Yates t. /ac* (1866) L. R. 1 Ch. 
295. Lanfranehi t. Mackenzie, L. B. 



374 



NUISANCE. 



SnppoBed 
rale or 
presamp- 
tion as to 
angle of 
45«. 



Enlarge- 
ment or 
alteration 
of lights. 



For some years it was supposed, by analogy to a regulation 
in one of the Metropolitan Local Management Acts as to the 
proportion between the height of new buildings and the 
width of streets {h)y that a building did not constitute a 
material obstruction in the eye of the law, or at least was 
presumed not to be such, if its elevation subtended an 
angle not exceeding 45^ at the base of the light alleged to 
be obstructed, or, as it was sometimes put, left 45"^ of 
light to the plaintiff. But it has been conclusively de- 
clared by the Court of Appeal that there is no such rule (t). 
Eveiy case must be dealt with on its own facts. The 
statutory regulation is framed on considerations of general 
public convenience, irrespective of private titles. Where an 
individual is entitled to more light than the statute would 
secure for him, there is no warrant in the statute, or in any- 
thing that can be thence inferred, for depriving him of it. 

An existing right to light is not lost by enlarging, re- 
building, or altering (/), the windows for which access of 
light is claimed. So long as the ancient lights, or a sub- 
stantial part thereof (A;), remain substantially capable of 



4 Eq. 421, 36 L. J. Gh. 518 (1867, 
before Malins, Y. -G.) seems to haye 
been decided, on the whole, on the 
ground that there was not any 
material diminution. So far as it 
saggests that there is a distinction 
in law between ordinary and extra- 
ordinary amounts of light, or that 
a plaintiff claiming what is caUed 
an extraordinary amount ought to 
show that the defendant had notice 
of the nature of his business, it 
cannot be accepted as authority. 
Cp, Moore t. Ball (1878) 3 Q. B. D. 
178, 47 L. J. Q. B. 334 ; Dicker t. 
JPbpham (1890) 63 L. T. 379. 

(A) 25 & 26 Vict. c. 102, s. 85. 

(•) Parker t. Firtt Avenus Motel 
Co. (1883) 24 Oh. Dir. 282 ; £ecle' 



iiaetieal Oommiesumers v. Kino (1880) 
14 Oh. Diy. 213, 49 L. J. Ch. 529. 

U) Tapling y. Jones (1865) 11 
H. L. C. 290, 34 L. J. 0. P. 842 ; 
Ayntley y. Olover (1874-5) 18 Eq. 
644, 43 L. J. Ch. 777, L. B. 10 Ch. 
283, 44 L. J. Ch. 523; Eeeleei- 
astical Commissionere y. Kino (1880) 
14 Ch. Div. 213; Greenwood y. 
Momee^ (1886) 33 Gh. D. 471, 55 
L. J. Gh. 917. 

{k) Newton y. JP^der (1884) 27 
Ch. Diy. 43, 61. It is not neces- 
sary that the ** structural identity*' 
of the old windows should be pre- 
seryed; the right is to light as 
measured by the aadent apertures, 
but not merely as incident to cer- 
tain defined apertures in a oertaia 



MABK£T OB FEBBT. 



876 



oontinuous enjoyment (/), so long the existing right con- 
tinues and is protected by the same remedies {m). And an 
existing right to light is not lost by interruption which is 
not continuous in time and quantity, but temporary and 
of fluctuating amount (n). 

It makes no difference that the owner of a servient tene« 
ment may, by the situation and arrangement of the build- 
ings, be unable to prevent a right beiog acquired in respect 
of the new light otherwise than by obstructing the old 
light also (o). For there is no such thing as a specific 
right to obstruct new lights. A man may build on his 
own land, and he may build so as to darken any light 
which is not ancient (as on the other hand it is undoubted 
law that his neighbour may open lights overlooking his 
land), but he must do it so ob not to interfere with lights 
in respect of which a right has been acquired. 

Disturbing the private franchise of a market or a ferryi^^^;, 
is commonly reckoned a species of nuisance in our books (p).|market or 
But this classification seems rather to depend on accidents ^'^' 
of procedure than on any substantial resemblance between 
interference with peculiar rights of this kind and such 
injuries to the enjoyment of common rights of property as 
we have been considering. The quasi-proprietary right to 



plaoe : Seott v. Fap$ (1886) 31 Ch. 
DIt. 554, 65 L. J. Ch. 426 ; National 
Provincial Plate Okut Inaurane$ Co, 
y. Prudential Auuranee Co, (1877) 
6 Ch. D. 757, 46 L. J. Ch. 871. 
Bat there must at all events be a 
definite mode of aoceas ; Earrie y. 
J># Pinna (1886) 33 Ch. Diy. 238, 
66 L. J. Ch. 344. 

, (t) The alteration or rebnilding 
most be oontinuous enough to show 
that the right is not abandoned; 
see Moore y. Eaweon (1824) 3 B. 
& C. 822. AU tho local circum- 



stances wiU be considered ; JBuUere 
y. Dickinton (1885) 29 Ch. D. 155, 
64 L. J. Ch. 776. There most be 
some specific identification of the 
old light as coincident with the 
new : Pendarvet y. Monro, '92, 1 
Ch. 611 ; 61 L. J. Ch. 494. 

(m) Staipht y. Bum (1869) L. B. 
6 Ch. per Giffard L. J. at p. 167. 

(n) Preeland y. Bingham (1889) 
41 Ch. Diy. 268. 

(o) Tapling y. Jonee (1865) 11 H. 
L. C. 290, 34 L. J. C. P. 342. 

{p) Bkckst. Comm. iil. 218. 



376 NUISANCE. 

a market or a ferry is of such a nature that the kind of 
disturbanoe oalled " nuifianoe " in the old books is the only 
way in whioh it can be violated at all. If disturbing a 
market is a nuisance, an infringement of copyright must 
be a nuisance too, unless the term is to be conventionally 
restricted to the violation of rights not depending on any 
statute. 

Bemedies i The remedies for nuisance are threefold : abatement, 
xudaanoe. Idamages, and injunction : of which the first is by the act 
of the party aggrieved, the others by process of law. 
Damages are recoverable in all cases where nuisance is 
proved, but in many cases are not an adequate remedy. 
The more stringent remedy by injunction is available in 
such cases, and often takes the place of abatement where 
that would be too hazardous a proceeding. 

Abate- The abatement of obstructions to highways, and the 

°^^ ' like, is still of importance as a means of ^asserting public 
rights. Private rights which tend to the benefit of the 
public, or a considerable class of persons, such as rights of 
common, have vrithin recent times been successfully main- 
tained in the same manner, though not without the addition 
of judicial proceedings {q). It is decided that not only 
walls, fences, and such like encroachments which obstruct 
rights of common may be removed, but a house wrongfully 
built on a common may be pulled down by a commoner 
if it is not removed after notice (r) vrithin a reasonable 
time («). 

(q) Smith y. JEafl Brownlow (1869) Perry y. Fitzho%D$ with some doubt. 

9Eq. 241 (thecaseof Berkhamrtead The ease of a man pulling down 

Common) ; Williama on Rights of buildings wrongfully erected on hid 

Common, 135. own land is different ; ib,; Burling 

(r) Pulling down the house with- y. Bead (i860) 11 Q. B. 904, 19 

. out notice while there are people in L. J. Q. B. 291. 

it is a tresp^Ms : Perry y. FUzhow$ (•) Laviit v. Williamt (1861) 16 

(1845) 8 Q. B. 757, 16 L. J. Q. B. Q. B. 646, 20 L. J. Q. B. 330; 

239 ; Jone$ y. J9n$9 (1862) 1 H. & cp. Lane t. Capeey^ '91) 3 Ch. 411. 
C. 1, 81 L. J. Ex. 606 ; foUowing 



>^' 



NOTICE TO WRONG-DOES. 



377 



If another man's tree oyerbangs my land, I may lawfully i 
cut the overhanging branches (t) ; and in these cases where 1 
the nuisance is in the nature of a trespass, and can be 
abated without entering on another's land, the wrong-doer 
is not entitled to notice (t/). But if the nuisance is on the 
wrong-doer's own tenement, he ought first to be warned 
and required to abate it himself (t^). After notice and^ 
refusal, entry on the land to abate the nuisance may be 
justified ; but it is a hazardous course at best for a man thus 
to take the law into his own hands, and in modem times it 
can seldom, if ever, be advisable. 



In the case of abating nuisances to a right of common, JjJ^^.*° 
notice is not strictly necessary unless the encroachment is ^o^* 
a dwelling-house in actual occupation ; but if there is a 
question of right to be tried, the more reasonable course is 
to give notice {x). The same rule seems on principle to be 
applicable to the obstruction of a right of way. As to the 
extent of the right, '^ where a fence has been erected upon 
a common, inclosing and separating parts of that common 
from the residue, and thereby interferiug with the rights 
of the commoners, the latter are not by law restrained in 
the exercise of those rights to pulling down so much of 
that fence as it may be necessary for them to remove for 
the purpose of enabling their cattle to enter and feed upon 
the residue of the common, but they are entitled to con- 



(f) Norrit v. Baker, 1 RoUe's 
Bop. 393, per Croke ; Lonsdale v. 
NeUon, 2 B. & 0. 311, per Best. 

(m) Lemmon v. Wehb, 7 R. Jnlyi 
111, '94, 8 Ch. 1. The oyerhang- 
ing of branchee ia not an actual 
trespass, per Lindley L. J., 7 R. 
July, at p. 114, '94, 3 Gh. at p. 11. 
It is a wise precaution to give 
notice, per Lopes and Kay L. JJ. 



The decision of the 0. A. was 
affirmed in H. L., Nov. 27, 18914 

(r) This has always been under- 
stood to be the law, and seems to 
follow a fortiori from the doctrine of 
Ferry y. Fitthotoe, n. (r), last page. 

(x) Per James L. J., Commit", 
aioners of Sewers v. Olatte (1872) 
L. R. 7 Gh. at p. 464. 



378 NUISANCE. 

aider the whole of that f enoe 80 erected upon the common 
a nuisance, and to remove it aocordinglj " (y). 

KniMnoes j^ jg douhtf ul whether there is any private right to ahate 
■ion. a nuisance consisting only in omission except where the 

person aggrieved can do it without leaving his own tene- 
ment in respect of which he suffers, and perhaps except in 
cases of urgency such as to make the act necessary for the 
immediate safety of life or property. '^ Nuisances by an 
act of commission are committed in defiance of those whom 
such nuisances injure, and the injured party may abate 
them without notice to the person who committed them ; 
but there is no decided case which sanctions the abatement 
I by an individual of nuisances from omission, except that of 
: cutting the branches of trees which overhang a public road, 
' or the private property of the person who cuts them. . . . 
: The security of lives and property may sometimes require 
\ 60 speedy a remedy as not to allow time to call on the 
\ person on whose property the mischief has arisen to remedy 
I it. In such cases an individual would be justified in abat- 
ing a nuisance from omission without notice. In all other 
cases of such nuisances persons should not take the law 
into their own hands, but follow the advice of Lord Hale 
and appeal to a court of justice " (2). 

In every case the party taking on himself to abate a 
nuisance must avoid doing any unnecessary damage, as is 
shown by the old form of pleading in justification. Thus 
it is lawful to remove a gate or barrier which obstructs a 
right of way, but not to break or deface it beyond what is 
necessary for the purpose of removing it. And where a 

(y) Bayley J. in Arlett v. Mlit preyenting aooess to the oommon is 

(1827) 7 B. & G. 346, 362, and not on the common itself : ibid. 
earlier authorities there cited. The {t) Best J. in Earl of Lonsdale v. 

first is 15 Hen. VII. 10, pi. 18. NeUon (1823) 2 B. & 0. at p. 311. 
There is a direnity where the fence 



ABATEMENT. 379 

stmoture, saj a dam or weir across a stream, is in part 
lawful and in part unlawful, a partj abating that which is 
unlawful cannot justify interference with the rest. He 
must distinguish them at his peril (a). But this does not 
mean that the wrong-doer is always entitled to have a 
nuisance abated in the manner most convenient to himself. 
The convenience of innocent third persons or of the public 
may also be in question. And the abator cannot justify 
doing harm to innocent persons which he might have 
avoided. In such a case, therefore, it may be necessary 
and proper ''to abate the nuisance in a manner more 
onerous to the wrong-doer " {b) . Practically the remedy of 
abatement is now in use only as to rights of common (as 
we have already hinted), rights of way, and sometimes 
rights of water ; and even in those cases it ought never to 
be used without good advisement. 

Formerly there were processes of judicial abatement Old writs, 
available for freeholders under the writ Quod permittat 
and the assize of nuisance (c). But these were cumbrous 
and tedious remedies, and, like the other forms of real 
action, were obsolete in practice long before they were 
finally abolished ((f), the remedies by action on the case at 
law and by injunction in the Court of Chancery having 
superseded them. 

There is not much to be said of the remedy in damages Damages, 
as applicable to this particular class of wrongs. Per- 
sistence in a proved nuisance is stated to be a just cause 
for giving exemplary damages (e). There is a place 

(a) Ormukuh y. Halliday (1830) Blackst. Comm. iii. 221. 

6 Bing. 379. (d) Seo ziote (A) to FenruddoekU 

(b) BoberU y. Sou (1865) Ex. Ch. m. 6 Go. Bep. 100 b, in ed. Thomas 
L. R. 1 Ex. 82, 89. & Fraaer, 1826. 

(e) F. N. B. 124 H., 183 I. ; {e) Blackst. Comm. iii. 220. 

£atm^t ca, 9 Go. Rep. 65 a, 



380 



NUISANCE. 



Injniio- 
tions. 



for nominal damages in cases where the nuisance consists 
merely in the obstruction of a right of legal enjoyment, 
such as a right of common, which does not cause any 
specific harm or loss to the plaintiff. At common law 
damages could not be awarded for any injury received 
from the continuance of a nuisance since the commence-^ 
ment of the action ; for this was a new cause of action for 
which damages might be separately recovered. But under 

(the present procedure damages in respect of any con- 
tinuing cause of action are assessed down to the date of 
the assessment (/). 

The most efficient and flexible remedy is that of injunc- 
tion. Under this form the Court can prevent that from 
being done which, it done, would cause a nuisance ; it can 
command the destruction of buildings (g) or the cessation 
of works {h) which violate a neighbour's rights ; where 
there is a disputed question of right between the parties, it 



(/) Rules of the.Sapreme Court, 
1883, Ord. 36, r. 58 (no. 482). 
The like power had already been 
ezerciaed by the Court (see Fritz 
T. Hobson (1880} 14 Ch. D. 642, 
657) when damage were given in 
addition to or in substitution for 
an injunction under Lord Cairns' 
Act, 21 & 22 Vict. 0. 27. This 
Act is now repealed by the Statute 
Law Revision and CivU Procedure 
Act, 1883, 46 & 47 Vict. o. 49, but 
the power conferred by it still 
exists, and is applicable in such 
actions as formerly would have 
been Chancery suits for an injunc- 
tion ; and the result may be to 
dispense with statutory require- 
ments as to notice of action, &o. 
which would not have applied to 
such suits: Chapman v. Auckland 



Union (1889) 23 Q. B. Div. 294, 299, 
300, 68 L. J. Q. B. 604. The Act 
did not confer any power to give 
damages where no actionable wrong 
had been done, e.g., in a case of 
merely threatened injury : Dreyfut 
V. Peruvian Ouano Co, (1889) 43 
Ch. Div. 316, 833, 842. 

(y) £.ff. Kelk V. Fearton (1871) 
L. R. 6 Ch. 809. 

(A) The form of order does not 
go to prohibit the cairying on of 
such and such operations abso- 
lutely, but " so as to cause a 
nuisance to the plaintiff,'* or like 
words : see Lingwcod v. Siawmarket 
Co, (1866) 1 Eq. 77, 336, and other 
precedents in Seton, Ft. 11. oh. 5, 
s. 6 ; cp. Fleming Y, Hielop (1886) 11 
App. Ca. (So.) 686. 



INJUNCTIONS. 



381 



can suspend the operations complained of until that ques- 
tion is finallj decided (i) ; and its orders may be either 
absolute or conditional upon the fulfilment by either or 
both of the parties of such undertakings as appear just in 
the particular case (/). 

It is matter of common learning and practice that an 
injunction is not, like damages, a remedy (as it is said) 
ex debito iuatitiae. Whether it shall be granted or not in a 
given case is in the judicial discretion of the Court, now 
guided by principles which have become pretty well 
settled. In order to obtain an injunction it must be 
shown that the injury complained of as present or impend* 
ing is such as by reason of its gravity, or its permanent 
character, or both, cannot be adequately compensated in 
damages [k). The injury must be either irreparable or 
continuous (/). This remedy is therefore not appropriate 
for damage which is in its nature temporary and inter- 
mittent {7n)y or is accidental and occasional (n), or for an 
interference with legal rights which is trifling in amount 



(t) Even a mandatory injanction 
may be granted in an extreme case, 
at an interlooatory stage: where, 
after notice of motion and before 
the hearing, the defendant had 
rapidly mn up the wall complained 
of, he was ordered to pull it down 
without regard to the general 
merits : Daniel y. Ferguaon^ '91, 2 
Ch. 27, 0. A. 

(y) Thus where the complaint 
was of special damage or danger 
from something alleged to be a 
public nuisance, an interlocutory 
injunction has been granted on 
the terms of the plainti£( bringing 
an indictment ; Hepburn y. Lordan 
(1865} 2 H. & H. 345, 352, 34 L. J. 



Gh. 293. 

(k) Cooke y. Forhee, 6 Eq. 160, 
173 (Page Wood V.-C. 1867); 
A.'O. y. Sheffield^ ^c. Co. (nextnote 
but one). 

(/) Page Wood L. J., L. B 4 Gh. 
at p. 81. 

(m) A,-0, y. Sheffield Oat Con- 
eumera* Co. (1853) 3 D. M. G. 304, 
22 L. J. Ch. 811 (breaking up 
streets to lay gas pipes), followed 
by A.'O, y. Cambridge Coneumere* 
Oas Co. (1868) L. R. 4 Ch. 71, 38 
L. J. Ch. 94. 

(«) Cooke y. Forbes (1867) 6 Eq. 
166 (escape of fumes from works 
where the precautions used were 
shown to be as a rule sufficient), 



382 



NUISANCE. 



and effect (n) . But the prospect of material in jury, which if 
completed would be ground for substantial damages, is gene- 
rally enough to entitle the plaintiff to an injunction (o). 

(Apprehension of future mischief from something in itself 
lawful and capable of being done without creating a nuisance 
is no ground for an injunction (je>). ^^ There must, it no 
actual damage is proved, be proof of imminent danger, and 
there must also be proof that the apprehended damage will, 
if it comes, be very substantial " {q). But where a nuisance 
is shown to exist, all the probable consequences are taken 
into account in determining whether the injury is serious 
within the meaning of the rule on which the Court acts (r). 
But there must be substantial injury in view to begin with. 
The following passages from a judgment of the late Lord 
Justice James will be found instructive on this point : — 

** In this case the Master of the Eolls has dismissed with 
costs the bill of the plaintiff. 

'' The bill, in substance, sought by a mandatory injunc- 
tion to prevent the defendants, who are a great colliery 
company, from erecting or working any coke ovens or 
other ovens to the nuisance of the plaintiff, the nuisance 
alleged being from smoke and deleterious vapours. 

<< The Master of the Kolls thought it right to lay down 
what he conceived to be the principle of law applicable to 



(n) Oaunt v. Fynney (1R72) L. R. 
S Gh. 8, 42 L. J. Ch. 122 (oase of 
ntdsance from noise broke down, 
Blight obstruction to ancient light 
held no ground for injunction). 

(o) Martin v. FHee, '94, 1 Gh. 
276, 7 R. Mar. 70, G. A. 

{p) See the cases reriewed by 
Pearson J., Fletcher r. Bealey (1886) 
28 Gh. D. 688, 64 L. J. Gh. 424, 
and see A^'O. ▼. C&rpwatum of 



Jfanehester, '93, 2 Gh. 87, 62 L. J. 
Gh. 469, 3 R. 427. 

(;) 28 Gh. D. at p. 698. A 
premature action of this kind may 
be dismissed without prejudice to 
future proceedings in the event 
of actual nuisance or imminent 
danger: H. 704. 

(r) Ooldemid t. Tunbridge Welle 
Improvement Commre, (1866) L. R. 
1 Gh. 349, 364, 36 L. J. Gh. 382. 



INJUNCTIONS. 383 

a case of tliis kind, wliioh principle he found expressed in 
the case of St. Helenas Smelting Company v. Tipping («), 
in which Mr. Justice MeUor gave a veiy elaborate charge 
to the jurjy which was afterwards the subject of a very 
elaborate discussion and consideration in the House of 
Lords. The Master of the Bolls derived from that case this 
principle ; that in anj case of this kind, where the plaintiff 
was seeking to interfere with a great work carried on, 
so far as the work itself is concerned, in the normal and 
useful manner, the plaintiff must show substantial, or, as 
the Master of the Bolls expressed it, 'visible' damage. 
The term * visible * was very much quarrelled with before 
us, as not being accurate in point of law. It was stated 
that the word used in the judgment of the Lord Chancellor 
was ' sensible.' I do not think that there is much dif- 
ference between the two expressions. When the Master of 
the Bolls said that the damage must be visible, it appears 
to me that he was quite right ; and as I understand the 
proposition, it amounts to this, that, although when you 
once establish the fact of actual substantial damage, it 
is quite right and legitimate to have recourse to scientific 
evidence as to the causes of that damage, still, if you are 
obliged to start with scientific evidence, such as the micro- 
scope of the naturalist, or the tests of the chemist, for the 
purpose of establishing the damage itself, that evidence 
will not suffice. The damage must be such as can be 
shown by a plain witness to a plain common juryman. 

« The damage must also be substantial, and it must be, in 
my view, actual ; that is to say, the Court has, in dealing 
with questions of this kind, no right to take into account 
contingent, prospective, or remote damage. I would illus- 
trate this by analogy. The law does not take notice of the 

(a) 11 H. L. 0. 642 (1866}. 



384 NUISANCE, 

imperceptible accretions to a river bank, or to the sea-shore, 
although after the lapse of years they become perfectly 
measurable and ascertainable ; and if in the course of 
nature the thing itself is so imperceptible, so slow, and so 
gradual as to require a great lapse of time before the results 
are made palpable to the ordinary senses of mankind, the 
law disregards that kind of imperceptible operation. So, 
if it were made out that every minute a millionth of a 
grain of poison were absorbed by a tree, or a millionth of 
a grain of dust deposited upon a tree, that would not afford 
a ground for interfering, although after the lapse of a 
million minutes the grains of poison or the grains of dust 
could be easily detected. 

'* It would have been wrong, as it seems to me, for this 
Court in the reign of Henry VI. to have interfered with 
the further use of sea coal in London, because it had 
been ascertained to their satisfaction, or predicted to their 
satisfaction, that by the reign of Queen Victoria both 
white and red roses would have ceased to bloom in 
the Temple Gardens. If some picturesque haven opens 
its arms to invite the commerce of the world, it is not 
for this Court to forbid the embrace, although the fruit 
of it should be the sights, and sounds, and smells of a 
common seaport and shipbuilding town, which would drive 
the Dryads and their masters from their ancient solitudes. 

" With respect to this particular property before us, I 
observe that the defendants have established themselves 
on a peninsula which extends far into the heart of the 
ornamental and picturesque grounds of the plaintiff. If, 
instead of erecting coke ovens at that spot, they had been 
minded, as apparently some persons in the neighbourhood 
on the other side have done, to import ironstone, and to 
erect smelting furnaces, forges, and mills, and had filled 
the whole of the peninsula with a mining and manufac- 



I 



WHAT IS SUBSTANTIAL DAMAGE. 386 

turing village, with beershops, and pig-sfyes, and dog- 
kennels, which would have utterly destroyed the beauty 
and the amenity of the plaintiff's ground, this Court could 
not, in my judgment, have interfered. A man to whom 
Providence has given an estate, under which there aje 
veins of coal worth perhaps hundreds or thousands of 
pounds per acre, must take the gift with the consequences 
and concomitants of the mineral wealth in which he is a 
participant" {t). 

It is not a necessary condition of obtaining an injunction 
to show material specific damage. ContinuoxLS interference 
with a legal right in a manner capable of producing 
material damage is enough (u). 

The difficulty or expense which the party liable for Diffiooltj 
a nuisance may have to mcur m removmg it makes no of abate-^ 
difference to his liability, any more than a debtor's being ™«^*^ 
unable to pay makes default in payment the less a breach 
of contract. And this principle applies not only to the 
right in itself, but to the remedy by injunction. The 
Court will use a discretion in granting reasonable time for 
the execution of its orders, or extending that time after- 
wards on cause shown. But where an injunction is the 
only adequate remedy for the plaintiff, the trouble and 
expense to which the defendant may be put in obeying the 
order of the Court are in themselves no reason for with- 
holding it {v). 

As to the person entitled to sue for a nuisance : as Partiee 
regards interference with the actual enjoyment of property, ^e for 

nnisanoe. 

(Q James L. J., Salvin y. Iforih 142, 42 L. J. Gh. 107 ; op. P^nntfi^- 
Braneepeth Coal Co, (1874) L. B. 9 ton y. Brinsop Mall Coal Co, (1877) 
Ch. 706, at p. 708. 6 Oh. D. 769, 46 L. J. Ch. 773. 

{u) Clowes Y, StafforcUhire Fotteries (v) A,-0.y. Colney Hatch Zunatie 

Waterworks Co. {}%n)'L.'B„^(Jh,Ub, Asylum (1868) L. R. 4 Ch. 146. 

P. C C 



386 NrasANCE. 

only the tenant in possession can sue ; but the landlord or 
reversioner can sue if the injury is of such a nature as 
to affect his estate, say by permanent depreciation of the 
property, or by setting up an adverse claun of right {x). 
A lessee who has underlet cannot sue alone in respect of a 
temporary nuisance, though he may properly sue as co- 
plaintiff with the actual occupier (y). A nuisance caused 
by the improper use of a highway, such as keeping carts 
and vans standing an unreasonable time, is not one for 
which a reversioner can sue ; for he suffers no present 
damage, and, inasmuch as no length of time will justify a 
public nuisance, he is in no danger of an adverse right 
being established (s). 

The reversioner cannot sue in respect of a nuisance in 
its nature temporary, such as noise and smoke, even if the 
nuisance drives away his tenants (a), or by reason thereof 
he can get only a reduced rent on the renewal of the 
tenancy (ft). "Since, in order to give a reversioner an 
action of this kind, there must be some injury done to 
the inheritance, the necessity is involved of the injury 
being of a permanent character" (c). But as a matter 
of pleading it is sufficient for the reversioner to allege a 
state of things which is capable of being permanently 
injurious (rf). 

Parties As to liability: The person primarily liable for a 

nuisance is he who actually creates it, whether on his own 

(at) See "Dioej on P&rtieB, 340. (b) Mwirfbrdr. Osiford, ^. B, Co. 

(y} Jonet y. Chappell (1876} 20 (1866) 1 H. & K. 34, 26 L. J. Ex. 

£q. 639, 44 L. J. Ch. 668, which 266. 

alao discredits the supposition that {e) Per cur. 1 G. B. N. S. at p. 

a weekly tenant cannot sne. 361. 

(s) Moit y. Shoolbred (1876) 20 (<Q Metropolitan A»»oeiation y. 

Eq. 22, 44 L. J. Ch. 384. reteh (1858) 6 C. B. K. S. 604, 27 

(a) Simpson y. Savage (1866) 1 L. J. 0. P. 830. 
C. B. N. S. 347, 26 L. J. 0. P. 60. 



PARTIES. 



387 



land or not {e). The owner or oooupier of land on which 
a nnisanoe is created, though not hy himself or by his 
servants, may also be liable in certain conditions. If a 
man lets a house or land with a nuisance on it, he as well 
as the lessee is answerable for the continuance thereof (/), 
if it is caused by the omission of repairs which as between 
himself and the tenant he is bound to do (/), but not 
otherwise {g). If the landlord has not agreed to repair, he 
is not liable for defects of repair happening during the 
tenancy, even if he habitually looks to the repairs in 
fact (A). It seems the better opinion that where the tenant 
is bound to repair, the lessor's knowledge, at the time of 
letting, of the state of the property demised makes no 
difference, and that only something amounting to an 
authority to continue the nuisance will make him liable (i). 
Again an occupier who by licence (not parting with the 
possession) authorizes the doing on his land of something 
whereby a nuisance is created is liable {k). But a lessor is 
not liable merely because he has demised to a tenant 



Si 



(ff) See Thompfon ▼. Gibaan (1841) 
7 M. & W. 456. 

(/) Todd Y,.Fli<7ht ( 1860) 9 C. B. 
N. S. 377, 30 L. J. C. P. 21. The 
extenMon of thia in Gandy y. Jubber 
(1864) 6 B. & S. 78, 33 L. J. Q. B. 
151, by treating the landlord's 
paasiFe continuance of a yearly 
tenancy as eqoiyalent to a re- 
letting, so as to make him liable 
for a nuisance created since the 
original demise, is inconsistent 
with the later authorities dted 
below : and in that case a judg- 
ment reversing the dedsion was 
actually prepared for delivery in 
the Ex. Ch., but the plaintiff 
meanwhile agreed to a atet procatus 
on the recommendation of the 



Court : see 5 B. & S. 485, and the 
text of the undelivered judgment 
in 9 B. & S. 15. How far this 
applies to a weekly tenancy, quare : 
see Boioen v. Anderton, '94, 1 Q. B. 
164, 10 R. Feb. 247. 

(^) Pretty V. Biekmore (1873) L. 
R. 8 C. P. 401 ; Gwinnell v. Earner 
(1875) L. R. 10 C. P. 658. 

(A) Kelton v. Liverpool Brewery 
Co, (1877) 2 0. P. D. 811, 46 L. J. 
0. P. 676 ; op. Bich v. Batterjleld 
(1847) 4 0. B. 783, 16 L. J. 0. P. 
273. 

(i) Fretty v. Biekmore (1873) L. 
R. 8 0. P. 401 ; Gwinnell v. Earner 
(1875) L. R. 10 0. P. 658. 

{k) White V. Jamcion (1874) 18 
Eq. 303. 



cc2 



388 NUISANCE. 

something capable of being 80 used as to oreate a nnisanoe, 
and the tenant has so used it (/)• Nor is an owner not in 
possession bound to take any aotive steps to remove a 
nuisance which has been created on his land without his 
authority and against his will {m). 

If one who has erected a nuisance on his land conveys 
the land to a purchaser who continues the nuisance, the 
vendor remains liable (n), and the purchaser is also liable 
if on request he does not remove it (o). 

(/) £ich T. BasUrJUId (1847) 4 lioenoe to abate the zLuiBauoe him- 

C. B. 783, 16 L. J. C. P. 273. self so far as thej were oomoemed. 

(m) Stabtf ▼. ManehetUr # Shrf- (n) Roww^U T. iVtor (1701) 12 

Jield R. Co, (1869) L. B. 4 0. P. Mod. 636. 

198, 38 L. J. C. P. 163, where the (0) F^nruddoeJ^i ea. 5 Go. Bep. 

defendantB had given the plamtiff 101 0. 



389 



CHAPTER XI. 



NEQLIGENCE (a). 



I. — The General Conception. 

For acts and their results (within the limits expressed by Omission 
the term ''natural and probable oonsequenoes," and dis- with 
ouBsed in a foregoing chapter, and Bubject to the grounds '^^ 
of justification and excuse which have also been discussed) ^l>i^*y' 
the actor is, generally speaking, held answerable by law. 
For mere omission a man is not, generally speaking, held 
answerable. Not that the consequences or the moral 
gravity of an omission are necessarily less. One who re- 
frains from stirring to help another may be, according to 
the circumstances, a man of common though no more than 
common good will and courage, a fool, a churl, a coward, 
or little better than a murderer. But, unless he is under 
some specific duty of action, his omission will not in any 
case be either an offence or a civil wrong. The law does 
not and cannot undertake to make men render active ser- 
vice to their neighbours at all times when a good or a 
brave man would do so (6). Some already existing rela- 
tion of duty must be established, which relation will be 

(a) Those who seek fuller in- {b) See Note M. to the Indian 

fonnation on the subject of this Penal Code as originally framed by 

dhapter may find it in Mr. Thomas the Commissioners. Yet attempts 

Beven's ezhanstiye and scholarly of this kind have been made in one 

monograph (** Principles of the or two recent Continental proposals 

Law of Negligence," London, for the improvement of criminal 

1889). law. 



390 NEGLIGENCE. 

found in most oases, though not in all, to depend on a 
foregoing voluntary act of the party held liable. He was 
not in the first instance bound to do anything at all ; but 
by some independent motion of his own he has given hos- 
tages, so to speak, to the law. Thus I am not compelled 
to be a parent; but if I am one, I must maintain my 
children. I am not compelled to employ servants ; but if 
I do, I must answer for their conduct in the course of their 
employment. The widest rule of this kind is that which 
is developed in the law of Negligence. One who enters 
on the doing of anything attended with risk to the persons 
or property of others is held answerable for the use of a 
certain measure of caution to guard against that risk. To 
name one of the commonest applications, '' those who go 
personally or bring property where they know that they 
or it may come into collision with the persons or property 
of others have by law a duty cast upon them to use reason- 
able care and skill to avoid such a collision {c). The 
caution that is required is in proportion to the magnitude 
and the apparent imminence of the risk : and we shall see 
that for certain cases the policy of the law has been to lay 
down exceptionally strict and definite rules. While some 
acts and occupations are more obviously dangerous than 
others, there is hardly any kind of human action that may 
not, under some circumstances, be a source of some danger. 
General Thus we arrive at the general rule that every one is boimd 
caution in to cxeroisc duc care towards his neighbours in his acts and 
*°**- conduct, or rather omits or falls short of it at his peril ; 

the peril, namely, of being liable to make good whatever 
harm may be a proved consequence of the default (d). 



{c) Loxd Blackburn, 3 App. Oa. (<Q Op. per Brett H. B., ffmven 

at p.' 1206. v. Fender (1883) 11 Q. B. Div. at 

p. 607. 



OVERLAPPING OP CONTRACT AND TORT, 391 

In some oases this ground of liability may co-exist with OYev' 
a liability on contract towards the same person, and arising oontraot 
(as regards the breach) out of the same facts. Where a ^ 
man interferes gratuitously, he is bound to act in a reason- 
able and prudent manner according to the circumstances 
and opportunities of the case. And this duty is not 
affected by the fact, if so it be, that he is acting for reward, 
in other words, imder a contract, and may be liable on the 
contract (e). The two duties are distinct, except so far as 
the same party cannot be compensated twice over for the 
same facts, once for the breach of contract and again for the 
wrong. Historically the liability in tort is older; and 
indeed it was by a special development of this view that 
the action of assumpsit, afterwards the common mode of 
enforcing simple contracts, was brought into use (/). ^^ If 
a smith prick my horse with a nail, &c., I shall have my 
action upon the case against him, without any uaiTanty 
by the smith to do it well, . « . . For it is the duty of 
eyeiy artificer to exercise his art rightly and truly as he 
ought" ig). This overlapping of the regions of Contract 
and Tort gives rise to troublesome questions which we are 
not yet ready to discuss. They are dealt with in the con- 

{e) This appears to be the sub- mle as to negligence, it is sab- 

stanoe of the rule intended to be mitted that the dissent of the Lords 

laid down by Brett M. R. in Justices was well founded. And 

,Heaven y. Pender (1883) 11 Q. B. see Beven on Negligence, 63. 

D. at pp. 607 — 610 ; his judgment (/) Cp. the present writer's 

was however understood by the ''Principles of Contract," p. 138, 

other members of the Court (Cot- 6th ed., and Prof. Ames's articles, 

ton and Bowen L.J J.) as formu- '*The History of Assumpsit," in 

lating some wider rule to which Hary. Law. Bey. ii. 1, 63. 

they could not assent. The case {$) F. N. B. 94 D. As to the 

itscdf comes under the special rules assumption of special skill being a 

defining the duty of occnpiers (see material element, cp. Shiellt y. 

Chap. XII. below). And, so far Blackburn^ (1789) 2 H. Bl. 168, 

as the judgment of Brett M. R. 211. R. 760; where **£^rossnegli- 

purported to exhibit those rules as genoe" appears to mean merely 

a simple deduction from the general actionable negligeooe. 



T 



393 NEGLIGENCE. 

oluding chapter of this book. Meanwhile we shall have to 
use for authority and illustration many oases where there 
was a co-existing duty ex contractu^ or even where the duty 
actually enforced was of that kind. For the obligation of 
many contracts is, by usage and the nature of the case, 
not to perform something absolutely, but to use all reason- 
able skill and care to perform it. Putting aside the re- 
sponsibilities of common carriers and innkeepers, which 
are peculiar, we have this state of things in most agree- 
ments for custody or conveyance, a railway company's 
contract with a passenger for one. In such cases a total 
refusal or failure to perform the contract is rare. The 
kind of breach commonly complained of is want of due 
care in the course of performance. Now the same facts 
may admit of being also regarded as a wrong apart from 
the contract, or they may not. But in either case the 
questions, what was the measure of due care as between 
the defendant and the plaintifi, and whether such care 
was used, have to be dealt with on the same principles. 
In other words, negligence in performing a contract and 
negligence independent of contract create liability in 
different ways : but the authorities that determine for us 
what is meant by negligence are in the main applicable to 
both. 

Definition The general rule was thus stated by Baron Alderson : 
ffen^ ' "Negligence is the omission to do something which a 
reaso nable man, guided upon those considerations which 
ordi narily regulate the conduct of human affairs, would do, 
or doing something which a prudent and reasonable man 
would not do " (A). It was not necessary for him to state, 

MOM*** * ■""*~**^'*^.«^ 

(h) Blyth ▼. Birmingham Water^ Brett J. in Smith y. L. f S. W, JS. 
jmrh% Co. (1866) 11 Ex. at p. 784, Co, (1870) L. B. 5 C. P. at p. 102. 
25 L. J. Ezi atp. 213 ; adopted by 



h 



alderson's definition. 393 

but we haye always to remember, that negligence will not 
be a ground of legal liability unless the paxiy whose oon- 
duot is in question is already in a situation that brings him 
under the duty of taking care. This, it will be observed, 
says nothing of the party's state of mind, and rightly. 
Jurisprudence is not psychology, and law disregards many 
psychological distinctions not because lawyers are ignorant 
of their existence, but because for legal purposes it is im- 
practicable or useless to regard them. Even if the terms 
were used by lawyers in a peculiar sense, there would be no 
need for apology ; but the legal sense is the natural one. 
Negligence is the contrary of diligence, and no one describes 
diligence as a state of mind. The question for judges and 
juries is not what a man was thinking or not thinking 
about, expecting or not expecting, but whether his be- 
haviour was or was not such as we demand of a prudent 
man under the given circumstances. Facts which were 
known to him, or by the use of appropriate diligence would 
have been known to a prudent man in his place, come into 
account as part of the circumstances. Even as to these the 
point of actual knowledge is a subordinate one as regards 
the theoretical foundation of liability. The question is not 
so much what a man of whom diligence was required 
actually thought of or perceived, as what would have been 
perceived by a man of ordinary sense who did think (t). 
A man's responsibility may be increased by his happening 
to be in possession of some material information beyond 
what he might be expected to have. But this is a rare 
case. 

As matter of evidence and practice, proof of actual 
knowledge may be of great importance. If danger of a 
well understood kind has in fact been expressly brought 

(t) Brett M. B., 11 Q. B. Biv. 508. 



894 NEGLIGENCE. 

to the defendant's notioe as the result of his oonduot, and 
the express warning has been disregarded or rejected {/), 
it is both easier and more oonvinoing to prove this than to 
show in a general way what a prudent man in the defen- 
dant's place ought to have known. In an extreme case 
reckless omission to use care, after notice of the risk, may 
be held, as matter of fact, to prove a mischievous inten- 
tion : or, in the terms of Boman law, culpa lata may be 
equivalent to dolus. For purposes of civil liability it is 
seldom (if ever) necessaiy to decide this point. 

^« , , We have assumed that the standard of duty is not the 

standard ... 

of duty foresight and caution which this or that particular man is 
Tarr^th Capable of, but the foresight and caution of a prudent 
^mt ^"*^ man — ^the average prudent man, or, as our books rather 
affect to say, a reasonable man — standing in this or that 
man's shoes (k). This idea so pervades the mass of our 
authorities that it can be appreciated only by some 
familiarity with them. In the year 1837 it was formally 
and decisively enounced by the Court of Common Pleas (/). 
The action was against an occupier who had built a rick 
of hay on the verge of his own land, in such a state that 
there was evident danger of fire, and left it there after 
repeated warning. The hayrick did heat, broke into 
flame, and set fire to buildings which in turn conmiuni- 
cated the fire to the plaintiff's cottages, and the cottages 
were destroyed. At the trial the jury were directed '^ that 
the question for them to consider was whether the fire had 
been occasioned by gross negligence on the part of the 

(J) Ae in Vmiffhan ▼. Ifenbve {k) Compare the Aristotelian 

(1837) 8 Bing. N. C. 468, where use of 6 ^fivi/Ms or o <ntovl«uos in 

the defendant, after being warned determining the standard of moral 

that his haystack was likely to duty. 

take fire, said he would chanoe it (/) Vaughan y. Mmlovt (1837} 

(pp. 471, 477). 8 Bmg. N. C. 468. 



THE STANDAED OP PRUDENCE. 395 

defendant," and " that he was bound to proceed with suoh 
reasonable oantion as a prudent man would have exeroised 
nnder suoh oircumstanoes/' A mle for a new trial was 
obtained '^ on the ground that the jury should haye been 
directed to oonsider, not whether the defendant had been 
guilty of gross negligence with reference to the standard 
of ordinary prudence, a standard too uncertain to afford 
any criterion ; but whether he had acted bona fide to the 
best of his judgment; if he had, he ought not to be 
responsible for the misforttme of not possessing the 
highest (fw) order of intelligence." The Court unani- 
mously declined to accede to this view. They declared 
that the care of a prudent man was the accustomed and 
the proper measure of duty. It had always been so laid 
down, and the alleged uncertainty of the rule had been 
found no obstacle to its application by juries. It is not 
for the Court to define a prudent man, but for the jury to 
say whether the defendant behaved like one. " Instead 
of saying that the liability for negligence should be co- 
extensive with the judgment of each individual — which 
would be as variable as the length of the foot of each 
individual — ^we ought rather to adhere to the rule which 
requires in all cases a regard to caution such as a man of 
ordinary prudence would observe " («). In our own time 
the same principle has been enforced in the Supreme Court 
of Massachusetts. '^ If a man's conduct is such as would 
be reckless in a man of ordinary prudence, it is reckless 
in him. Unless he can bring himself within some broadly 
defined exception to general rules, the law deliberately 
leaves his personal equation or idiosynoraoies out of account, 

(m) This misreprefientfl the rule required, 
of law : not the highest intelU- (it) lindal C. J., 8 Bing. N. 0. 

gence, but inteUigence not below at p'. 475. 
the arerage prudent man's, being 



396 



NEGLIGENCE. 



Diligenoe 
inoludes 
oompe- 
tenoe. 



and peremptorily aasumes that he hcus as much oapaoity to 
judge and to foresee oonsequenoes as a man of ordinary 
prudence would have in the same situation " (o). 

It wiU be remembered that the general duty of diligenoe 
inoludes the particular duty of competence in cases where 
the matter taken in hand is of a sort requiring more than 
the knowledge or ability which any prudent man may be 
expected to haye. The test is whether the defendant has 
done "all that any skilful person could reasonably be 
required to do in such a case " (p). This is not an excep- 
tion or extension, but a necessary application of the general 
rule. For a reasonable man will know the bounds of his 
competence, and will not intermeddle (save in extraordinary 
emergency) where he is not competent (q). 



NegU- 
genoe a 
qnefition 
of mixed 
fact and 
law. 



II. — Evidence of Negligence, 

Due care and caution, as we haye seen, is the diligence 
of a reasonable man, and includes reasonable competence 
in cases where special competence is needful to ensure 
safety. Whether due care and caution have been used in 
a given case is, by the nature of things, a question of fact. 
But it is not a pure question of fact in the sense of being 
open as a matter of course and without limit. Not every 
one who suffers harm which he thinks can be set down to 
his neighbour's default is thereby entitled to the chance of 
a jury giving him damages. The field of inquiry has 
limits defined, or capable of definition, by legal principle 
and judicial discussion. Before the Court or the jury can 
proceed to pass upon the facts alleged by the plaintiff, the 



(o) Ctmmonwealth y. PUree (1884) 
138 Mass. 166, 62 Am. Bep. 264, 
per Holmes J. See too per Bayley 
J. in JoHM T. Bird (1822) 6 B. & A. 



at pp. 846-6. 

{p) Barley J., 6 B. & A. at 
p. 846. 

{q) See p. 26, aboye. 



BURDEN OF PKOOF. 397 

Court must be satifified that those faots, if proyed, are in 
law capable of supporting the inference that the defendant 
has failed in what the law requires at his hands. In the 
current forensic phrase, there must be evidence of negli- 
gence. The peculiar relation of the judge to the jury in 
our common law system has given occasion for frequent 
and minute discussion on the propriety of leaving or not 
leaving for the decision of the jury the facts alleged by a 
plaintiff as proof of negligence. Such discussions are not 
carried on in the manner best fitted to promote the clear 
statement of principles; it is difficult to sum up their 
results, and not always easy to reconcile them. 

The tendency of modem rulings of Courts of Appeal has 
been, if not to enlarge the province of the jury, to arrest 
the process of curtailing it. Some distinct boundaries, 
however, are established. 

Where there is no contract between the parties, the Bozdenaf 
burden of proof is on him who complains of negligence. ^ 
He must not only show that he suffered harm in such a 
manner that it might be caused by the defendant's negli- 
gence ; he must show that it was so caused, and to do this 
he must prove facts inconsistent with due diligence on the 
part of the defendant. ^' Where the evidence given is 
equally consistent with the existence or non-existence of 
i^egligence, it is not competent to the judge to leave the 
matter to the jury " (r). 

Nothing can be inferred, for example, from the bare 
fact that a foot-passenger is knocked down by a carriage in 
a place where they have an equal right to be, or by a train 
at a level crossing («). Those who pass and repass in fre- 

(r) WiUiama J. in Sammaek v. 0. P. 333 ; Wakelin v. X. ^ 8, W. 

WhiU (1862) 11 0. B. K. S. 688, R, Co. (1886) 12 App. Ca. 41. 

81 L. J. C. P. 129 ; Coti4m ▼. Wood («) WaheUn t. X. # S. W, R, Co,y 

(1860) 8 C. B. N. S. 668, 29 L. J. last note. 



398 



NEGLIGENCE. 



quented roads are bound tousedueoare^be it on foot or on 
horseback, or with carriages: and before one can complain 
of another, he must show wherein care was wanting. 
^' When the balance is even as to which party is in fault, 
the one who relies upon the negligence of the other is 
bound to turn the scale " (t). It cannot be assumed, in 
the absence of all explanation, that a train ran over a man 
more than the man ran against the train (t^). If the oar- 
xiage was being driven furiously, or on the wrong side of 
the road, that is another matter. But the addition of an 
ambiguous circumstance wiU not do. 

Thus in Cotton v. Wood (t?) the plaintiff's wife, having 
safely crossed in front of an omnibus, was startled by some 
other carriage, and ran back ; the driver had seen her pass, 
and then turned round to speak to the conductor, so that 
he did not see her return in time to pull up and avoid 
mischief. The omnibus was on its right side and going at 
a moderate pace. Here there was no evidence of negli- 
gence on the part of the defendant, the owner of the 
omnibus {x). His servants, on the plaintiff's own showing, 
had not done anything inconsistent with due care. There 
was no proof that the driver turned round to speak to the 
conductor otherwise than for a lawful or necessary purpose, 
or had any reason to apprehend that somebody would run 
under the horses' feet at that particular moment. Again 
if a horse being ridden (y) or driven (2) in an ordinary 
manner nms away without apparent cause, and in spite of 



(0 Erie 0. J., Cotton y. JFood, 
note (r). 

(u) Lord HalBbnry, 12 App. Ca. 
at p. 45. 

(v) (1860) 8 C. B. N. 8. 668, 29 
L. J. C. P. 333, note (r) alwve. 

(x) It would be convenient if one 
oonld in these running-down cases 
on land personify the vehicle, like 
a ship. 



(S^) Hammock Y. White (1862) 11 
C. B. N. S. 688, 31 L. J. C. P. 129. 

{z) Manami ▼. LougUu (1880) 6 
Q. B. D. 146, 50 L. J. Q. B. 289, 
where it was miBaooeesfally at- 
tempted to shake the authority of 
Hammock y. White, The cases 
relied on for that purpose belong 
to a special class. 



WHERE CONTEACT OR UNDERTAKING. 399 

the rider's or driver's efforts trespasses on the footway and 
there does damage, this is not evidence of negligence. The 
plaintiff ought to show positively want of care, or want of 
skin, or that the owner or person in charge of the horse 
knew it to be unmanageable. " To hold that the mere fact 
of a horse bolting is per Be evidence of negligence would be 
mere reckless guesswork " (a). 

Sometimes it is said that the burden of proof is on the 
plaintiff to show that he was himself using due care, and 
it has been attempted to make this supposed principle a 
guide to the result to be arrived at in cases where the 
defence of contributory negligence is set up. This view 
seems to be rather prevalent in America (i), but in the 
present writer's opinion it is imsound. The current of 
English authority is against it, and it has been distinctly 
rejected in the House of Lords {c). What we consider to 
be the true view of contributory negligence will be pre- 
sently explained. 

This general principle has to be modified where there is Where 

I fflAHA lit 

a relation of contract between the parties, and (it should contract 
seem) when there is a personal undertaking without a con- ^^^^^' 
tract. A coach runs against a cart ; the cart is damaged, 
the coach is upset, and a passenger in the coach is hurt. 
The owner of the cart must prove that the driver of the 
coach was in fault. But the passenger in the coach can 
say to the owner: "Tou promised for gain and reward 
to bring me safely to my journey's end, so far as reason- 
able care and skill could attain it. Here am I thrown out 
on the road with a broken head. Your contract is not 



(a) lindley J., 6 Q. B. D. at (c) JTakelm r. X. f S. W. JR. Co. 

p. 163. (1886) 12 App. Ga. 41, 47, 51, 66 

{h) E. g. Murphy v. Deane^ 101 L. J. Q. B. 229, per Lord Watson 

Mass. 456. and Lord Fitzgerald. 



400 NEGLIGENCE. 

performed ; it is for you to show that the misadventure is 
due to a cause for which you are not answerable " (d). 

When a railway train runs off the line, or runs into 
another train, both permanent way and carriages, or both 
trains (as the case may be) being under the same company's 
control, these facts, if unexplained, are as between the 
company and a passenger evidence of negligence (e). 

In like manner, if a man has undertaken, whether for 
reward or not, to do something requiring special skill, he 
may fairly be called on, if things go wrong, to prove his 
competence : though if he is a competent man, the mere 
fact of a mishap (being of a kind that even a competent 
person is exposed to) would of itself be no evidence of 
negligence. We shall see later that, where special duties 
of safe keeping or repair are imposed by the policy of the 
law, the fact of an accident happening is held, in the same 
manner, to cast the burden of proving dilig^ice on the 
person who is answerable for it, or in other words raises a 
presumption of negUgence. This is said without prejudice 
to the yet stricter rule of liability that holds in certain 
cases. 

Thizigs Again there is a presumption of negligence when the 

fendant*8 oause of the mischief was apparently under the control of 
oontrol. ^^Q defendant or his servants. The rule was declared by 
the Exchequer Chamber in 1865 (/), in these terms : — 
'^ There must be reasonable evidence of negUgence. 
" But where the thing is shown to be under the manage- 
ment of the defendant or his servants, and the accident is 

{d) In other worcLs (to sntioipate («} Carpu$ v. London f Brighton 

part of a tpecial ducoasion) the J^. Co, (1844) 5 Q. B. 747, 751, 13 

obligation does not become greater L. J. Q. B. 138 ; Skinner ▼. X. B, 

if we regard the liability 9a ex ^ S. C, B, Co. (1850) 5 Ex. 787. 
delicto instead of ex contractu; bat (/) Scott y. London Dock Co., 3 

neither does it become less. H. & C. 596, 34 L. J. Ex. 220. 



EVIDENCE AND PRESUMPTION. 401 

such as in the oidinaiy coarse of things does not happen 
if those who haye the management use proper care, it 
affords reasonable evidenoe, in the absence of explanation 
by the defendants, that the accident arose from want of 
care." 

Therefore if I am lawfully and as of right (^) passing in 
a place where people are handling heavy goods, and goods 
being lowered by a crane fall upon me and knock me down, 
this is evidence of negligence against the employer of the 
men who were working the crane (h). 

The Court will take judicial notice of what happens in Common 
the ordinary course of things, at all events to the extent affairs 
of using their knowledge of the common affairs of life to j^^^^^^ 
complete or correct what is stated by witnesses. Judges 
do not affect, for example, to be ignorant that the slipping 
of one passenger out of several thousand in hurrying up 
the stairs of a railway station is not an event so much out 
of the run of pure accidents as to throw suspicion on the 
safety of the staircase (t). 

When we have once ffot somethinir more than an ambi- 9"^ ®^' 

, denoe 

guously balanced state of facts; when the evidence, if Buffident 
believed, is less consistent with diligence than with negli- gestionis 
gence on the defendant's part, or shows the ndn-perform- ^^^ ^^^' 
ance of a specific positive duty laid on him by statute, 
contract, or otherwise; then the judgment whether the 
plaintiff has suffered by the defendant's negligence is a 
judgment of fact, and on a trial by jury must be left as 

( g) That u, not merely hj the no dissenting judgment was de- 
defendant's licence, as wiU be ex- lirered, nor does the precise ground 
plained later. of dissent appear. 

(A) 3 H. & C. 696, Crompton, (t) Crafter ▼. Metrop. S, Co. 

Byles, Blackburn, Keating JJ., (1866) L. B. 1 C. P. 300, 36 L. J. 

diu, Erie C. J. and Mellor J. ; but C. P. 132. 

F. VD 



402 



NEQUGEKCE. 



Bttoli in the hands of the jury {j). The question of negli- 
genoe is one of law for the Court only where the facts are 
saoh that all reasonable men must draw the same conolusion 
from them (ft). It is true that the rules as to remoteness 
of damage set some bounds to the connexion of the defend- 
ant's negligence with the plaintiff's loss (/). But eyen in 
this respect considerable latitude has been allowed (m). 
Eailway accidents have for the last forty years or more 
been the most frequent occasions of defining, or attempting 
to define, the frontier between the province of the jury and 
that of the Court. 



Recent 
railway 
oases on 
level 
oroeaings 
and ''in- 
yitation to 
aUght." 



Two considerable and well marked groups of cases stand 
out from the rest. One set may be broadly described as 
level crossing cases, and culminated in North Eastern 
Railtcay Company v. Wankss^ decided by the House of 
Lords in 1874 (n) ; the other may still more roughly (but 
in a manner which readers familiar with the reports will 
at once understand) be called " invitation to alight" cases. 
These are now governed by Bridges v. North London Rail-- 
way Company (o), another decision of the House of Lords 
which followed closely on JFankss^s case. In neither of 
these cases did the House of Lords intend to lay down any 
new rule, nor any exceptional rule as regards railway 
companies : yet it was found needful a few years later to 
restate the general principle which had been supposed to 



{J) This IB well put in the judg- 
ment m M*CuUy y. Clark (Penn- 
sylyania, 1861) Bigelow L. G. 659. 

(A;) Oardner y. Michigan Central 
M. M. (1893) 160 U. S. 349, 361. 

(/) Metrop. £, Co» y. Jaekaon 
(1877) 3 App. Oa. 193, 47 L. J. 
C. P. 803. 



(m) See WiUiami y. O. W, S. Co, 
(1874) L. R. 9 Ex. 167, 43 L. J. 
Ex. 106, aupra, p. 38. Gp. per 
Lord Halsbmy, 12 App. Oa. at 
J. 43, 

(») L. E. 7 H. L. 12, 43 L. J. 
Q. B. 186. 

(o) L. R. 7 H. L. 213, 43 L. J. 
Q. B. 161 (1873-4.) 



RAILWAY CASES : JUDGE AND JURY. 403 

be impugned. This was done in Metropolitan Railway 
Company y. Jackson (p). 

" The judge has a certain duty to discharge, and the ExpUna- 
jurors haye another and a diflPerent duty. The judge has j^jj^^jj. 
to say whether any facts have been established by eyidenoe ^•^* 
from which negligence may be reasonably inferred; the 
jurors haye to say whether, from those facts, when sub- 
mitted to them, negligence ought to be inferred. It is, in 
my opinion, of the greatest importance in the administra- 
tion of justice that these separate functions should be 
maintained, and should be maintained distinct. It would 
be a serious inroad on the proyince of the jury, if, in 
a case where there are facts from which negligence may 
reasonably be inferred, the judge were to withdraw the 
case from the jury upon the ground that, in his opinion, 
negligence ought not to be inferred ; and it would, on the 
other hand, place in the hands of the jurors a power 
which might be exercised in the most arbitrary manner, 
if they were at liberty to hold that negligence might be 
inferred from any state of facts whatever " (q), 

" On a trial by jury it is, I conceive, undoubted that the 
facts are for the jury, and the law for the judge. It is 
not, however, in many cases practicable completely to sever 
the law from the facts. 

'^ But I think it has always been considered a question of 
law to be determined by the judge, subject, of course, to 
review, whether there is evidence which, if it is believed, 
and the counter evidence, if any, not believed, would 
establish the facts in controversy. It is for the juiy to 
flay whether, and how far, the evidence is to be believed. 
And if the facts as to which evidence is given are such 

{p) 3 App. Ca. 198, 47 L. J. negligence onglxt to be infeired, 

G. F. 303 (1877). but whetbeTi as reaaonable mon, 

(9)LordGaims,atp.l97. Stricily they do infer it. 
the jurors have to say not whether 

dd2 



404 NEGLIGENCE. 

tliat from them a farther inf erenoe of f aot may legitimately 
be drawn, it is for the jury to say whether that inference 
is to be drawn or not. But it is for the judge to deter- 
mine, subject to review, as a matter of law, whether from 
those facts that farther inference may legitimately be 
drawn'' (r). 

The case itself was dedded on the ground that the hurt 
suffered by the plaintiff was not the proximate consequence 
of any proved negligence of the defendants ; not that there 
was no proof of the defendants having been negligent at 
all, for there was evidence which, if believed, showed mis- 
management, and would have been quite enough to fix on 
the defendant company liability to make good any damage 
distinctly attributable to such mismanagement as its 
'' natural and probable " consequence (a). As between 
the plaintiff and the defendant, however, evidence of 
negligence which cannot be reasonably deemed the cause 
of his injury is plainly the same thing as a total want 
of evidence. Any one can see that a man whose com- 
plaint is that his thumb was crushed in the door of a 
railway carriage would waste his trouble in proving (for 
example) that the train had not a head-light. Tht House 
of Lords determined, after no small difference of learned 
opinions belpw, that it availed him nothing to prove over- 
crowding and scrambling for seats. The irrelevance is 
more obvious in the one case than in the other, but it is 
only a matter of degree (^)« 

The 'lerel In the " level crossing " group of cases we have some 
type of one crossing a railway at a place made and provided hy 

(r) Lord Blackburn, at p. 207. (0 Cp. Tounder r. y. JS, S, Cb., 

C Cp. Byder y . JTc mbwe ll (IS6S), in '92, 1 Q. B. 385, 61 L. J. Q. B. 136 

^ Ex. Ch., LTSTTExTSS, 38 L. J. (plaintiff assaulted by persons who 

Ex. 8, whioh Lord Blackburn goes had crowded in), and Cobb v. O. JP'* 

on to cite with approval. JR. Co, '93, 1 Q. B. 469, 62 L. J» 

(«} See pp. 32, 36, aboye. Q. B. 335, 4 B. 283, C. A. 



RAILWAY CASES. 



405 



the company for that purpose, and where the oompanj is 
under the statutory duty of observing oertain precautions. 
The party assumes that the line is clear ; his assumption 
is erroneous, and he is run down by a passing train. Here 
the company has not entered into any contract with him ; 
and he must prove either that the company did something 
which would lead a reasonable man to assume that the 
line was clear for crossing (u), or that there was something 
in their arrangements which made it impracticable or 
unreasonably difficult to ascertain whether the line was 
clear or not. Proof of negligence in the air, so to speak, 
will not do. '^ Mere allegation or proof that the company 
were guilty of negligence is altogether irrelevant; they 
might be guilty of many negligent acts or omissions, 
which might possibly have occasioned injuiy to somebody, 
but had no connexion whatever with the injury for which 
redress is sought, and therefore the plaintiff must allege 
and prove, not merely that they were negligent, but that 
their negligence caused or materially contributed to the 
injury " (v). "What may reasonably be held to amount to 
such proof cannot be laid down in general terms. '^ You 
must look at each case, and all the facts of the case, before 
you make up your mind what the railway company ought 
to do " {x). But unless the plaintiff's own evidence shows 
that the accident was due to his own want of ordinary 
oare (as where in broad daylight he did not look out at 
aU (y), the tendency of modem authority is to leave the 



(m) As in TTanleu^t oaee, L. B. 7 
H. L. 12, 43 L. J. Q. B. 185, 
where the gates (mtended prima- 
rily for the protection of carriage 
traf&c) were left open when they 
onght not to have heen, so that the 
.plaintiff was thrown off his guard. 

(p) Lord Watson, Waielin y. Z. 



# S. W, R. Co, (1886) 12 App. Oa. 
41,47, 56 L. J. Q.B. 229. 

{x) Bowen L. J., Davey y. X. ^ 
S. W. R, Co, (1883) 12 Q. B. Div. 
at p. 76. 

(y) Davey v. X. # i^. W. S. Co. 
(1883) 12 Q. B. Div. 70, 53 L. J. 
Q. B, 58; a case which perhaps 



406 



NEGLIGENCE. 



matter very much at large for the jiuy. In Dublin^ 
Wicklow and Wexford Railway Co. y. Slattery («), the only 
point of negligence made against the railway company 
was that the train which ran over and killed the plaintiff's 
husband did not whistle before running through the 
station where he was crossing the line. It was night at 
the time, but not a thick night. Ten witnesses distinctly 
and positively testified that the engine did whistle. Three 
swore that they did not hear it. A jury having found 
for the plaintiff, it was held by the majority of the House 
of Lords that the Court could not enter a verdict for the 
defendants, although they did not conceal their opinion 
that the actual verdict was a perverse one {a). 

The '* in- In the other group, which we have called " invitation to 
alight " cases, the nature of the facts is, if anything, less 
favourable to the defendant. A train stopping at a station 
overshoots the platform so that the front carriages stop at 
a place more or less inconvenient, or it may be dangerous, 
for persons of ordinary bodily ability to alight. A pas- 
senger bound for that station, or otherwise minded to 
alight, is unaware (as by reason of darkness, or the like, 
he well may be) of the inconvenience of the place (J), or 



yitation to 

aUght" 

group. 



belongs properly to the head of 
oontributory negligenoe, of whioh 
more presently. Only the drcum- 
stanoe of daylight seems to distin- 
guish this from Slatterns east (next 
note). 

(s) 3 App. Ca. 1165. Nearly aU 
the modem cases on ** evidenoe 
of negligence" were cited in the 
argmnent (p. 1161). Observe that 
the question of the Terdiot being 
against the weight of eyidence was 
not open (p. 1162). 

(a) The majority consisted of 
Lord Cairns (who thought the 



Terdict could not have stood if the 
accident had happened by day- 
light), Lord Penzance, Lord 
0*Hagan, Lord SelbomCi and Lord 
Qordon ; the minority of Lord 
Hatherley, Lord Coleridge, and 
Lord Blackburn. Mlia v. G, JF. 
JJ. Co, (Ex. Ch. 1874) L. B. 9 C. 
P. 651, 43 L. J. 0. P. 304, does 
not seem consistent with this de- 
drion ; there was difference of 
opinion in that case also. 

(ft) Coekle v. 8. E, M. Co, (1872) 
Ex. Ch. L. R. 7 0. P. 321, 41 
L. J. 0. P. 140. 



EVIDiaJCE. 407 

else is aware of it, bat takes the attendant risk rather than 
he carried beyond his destination. In either case he gets 
out as best he can, and, whether through false security, or 
in spite of such caution as he can use, has a fall or is 
otherwise hurt. Here the passenger is entitled by his 
contract with the company to reasonable acoommodation, 
and they ought to give him facilities for alighting in a 
reasonably convenient manner. Overshooting the platform 
is not of itself negligence, for that can be set right by 
backing the train (c). It is a question of fact whether 
under the particular circumstances the company's servants 
were reasonably diligent for the accommodation of the 
passengers ((/), and whether the passenger, if he alighted 
knowing the nature of the place, did so under a reasonable 
apprehension that he must alight there or not at all {e). 

All these cases are apt to be complicated with issues CompUca- 
of contributory negligence and other similar though not ^^J^J. 
identical questions. We shall advert to these presently, torynegli- 

, . genoe, «o. 

It will be convenient now to take a case outside these 
particular types, and free from their complications, in 
which the difficulty of deciding what is " evidence of neg- 
ligence " is illustrated. Such an one is Smith v. London Other 
and South Western Railway Company {/). The facts are, tionsof" 
in this country and climate, of an exceptional kind : but ^1®^^^^*^ 
the case is interesting because, though distinctly within genoe»*: 

the line at which the freedom of the jury ceases, that line z. # 8, W, 

M, Co. 

{e) Siner v. G. W. R, Co. (1869) L. J. Ex. 374 (both in 1876). 

Ex. Ch. L. R. 4 Ex. 117, 38 L. J. (/) L. R. 6 0. P. 98, 39 L. J. 

Ex. 67. G. P. 68, in Ex. Ch. 6 0. P. 14, 

(d) Bridget v. N. London R, Co. 40 L. J. 0. P. 21 (1870). The 
p. 402, above. accident took place in the extra- 

(e) Sobson v. JV. J?. It. Co. 2 Q. ordinarily warm and dry sonuner 
B. DiY. 85, 46 L. J. Q. B. 50 ; Mote of 1868. 

v. If. E. R. Co. 2 Ex. Div. 248, 46 



408. NEGUGENCB. 

is shown by the tone and language of the judgments in 
both the Common Pleas and the Exchequer Chamber to 
be nearly approached. The action was in respect of pro- 
perty burnt by fire, communicated from sparks which had 
escaped from the defendant company's locomotives. The 
material elements of fact were the following. 

Hot dry weather had prevailed for some time, and at 
the time of the accident a strong S.E. wind was blowing. 

About a fortnight earlier grass had been cut by the 
defendants' servants on the banks adjoining the line, and 
the boundary hedge trimmed, and the cuttings and trim- 
mings had, on the morning of the fire (^), been raked into 
heaps, and lay along the bank inside the hedge. These 
cuttings and trimmings were, by reason of the state of the 
weather, very dry and inflammable. 

Next the hedge there was a stubble field ; beyond that 
a road ; on the other side of the road a cottage belonging 
to the plaintiff, 200 yards in all distant from the railway. 

Two trains passed, and immediately or shortly after- 
wards the strip of grass between the railroad and the 
hedge was seen to be on fire. Notwithstanding all efforts 
made to subdue it, the fire burnt through the hedge, 
spread over the stubble field, crossed the road, and con- 
sumed the plaintiff's cottage. 

There was no evidence that the railway engines were 
improperly constructed or worked with reference to the 
escape of sparks, and no direct evidence that the fire came 
from one of them. 

The jury found for the plaintiff; and it was held 
(though with some difficulty) (A) that they were warranted 

(^) See statement of the facts in expressed some doubt in the Ex. 

the report in Ex. Ch. L. B. 6 0. P. Ch. on the ground that the par- 

at p. 15. tlcular damage in question oould 

(h) Brett J. dissented in the not have reasonably been antioi- 

ConuDon Flte, and Blaokbuzn J. paied. 



EVIDENCE. 409 

in 80 finding on the ground that the defendants were negli- 
gent, haying regard to the prevailing weather, in leaving 
the dry trimmings in such a place and for so long a time. 
The risk, though unusual, was apparent, and the company 
was hound to he careful in proportion. ** The more likely 
the hedge was to take fire, the more incumhent it was 
upon the company to take care that no inflammable 
material remained near to it" (t). Thus there was evidence 
enough (though it seems only just enough) to be left for 
the jury to decide upon. Special danger was apparent, 
and it would have been easy to use appropriate caution. 
On the other hand the happening .of an accident in extra- 
ordinary circumstances, from a cause not apparent, and in 
a manner that could not have been prevented by any 
ordinary measures of precaution, is not of itself any 
evidence of negligence {k). And a staircase which has 
been used by many thousand persons without accident 
cannot be pronounced dangerous and defective merely 
because the plaintiff has slipped on it, and somebody can 
be found to suggest improvements (/). 

Illustrations might be largely multiplied, and may be No precise 
foimd in abimdance in Mr. Horace Smith's, Mr. Camp- rule can 
bell's, or Mr. Seven's monograph, or by means of the dta- fi^^®^ 
tions and discussions in the leading cases themselves. 
Enough has been said to show that by the nature of the 
problem no general formula can be laid down except in 

(t) Lush J. in Ex. Ch. L. B. 6 the brass ** nosing *' of the steps 

C. P. at p. 23. (this being the material in common 

{k) Blyth Y. Birmingham Water' use, whereof the Oourt took judi- 

work* Co, (1856) 11 Ex. 781, 25 dal notice ** with the common ex- 

L. J. Ex. 212, tuproy p. 42. perienoe which eyerj one has," 

(/) Crofter v. Metrop. R, Co. per WiUes J. at p. 303), and it was 

(1868) L. B. 1 G. P. 300, 35 L. J. suggested that lead would hare 

C. P. 132 : the plaintiff slipped on been a safer material. 



410 NEOUGENCE. 

Bome suoh purposely vague terms as were used in Scott y. 
London Dock Co, (rn). 

Bae oaze We have said that the amount of caution required of a 
apparent citizen in hifl conduct is proportioned to the amount of 
^^tion" apparent danger. In estimating the probahilitj of danger 
^^ ^dfi te *^ others, we are entitled to assume, in the absence of any- 
through thing to show the contrary, that they have the full use of 
^rmity. common faculties, and are capable of exercising ordinary 
caution. If a workman throws down a heavy object from 
a roof or scaffolding ''in a country village, where few 
passengers are," he is free from criminal liability at all 
events, provided ''he calls out to all people to have a 
care" («). Now some passer-by may be deaf, and may 
suffer bj not hearing the waming. That wiU be his mis- 
fortune, and may be unaccompanied by any imprudence 
on his part ; but it cannot be set down to the fault of the 
workman. If the workman had no particular reason to 
suppose that the next passer-by would be deaf, he was 
bound only to such caution as suffices for those who have 
ears to hear. The same rule must hold if a deaf man is 
run over for want of hearing a shout or a whistle (o), or a 
blind man for want of seeing a light, or if a colour-blind 
man, being unable to make out a red danger flag, gets in 
the line of fire of rifle or artillery practice ; or if in any of 
these circumstances a child of tender years, or an idiot, 
suffers through mere ignorance of the meaning which the 
waming sight or sound conveys to a grown man with his 

(m) P. 400, aboTe. (o) Cp. Skelton v. Z. ^ If. W, B. 

(a) Blaokst. Comm. iv. 192. D. Co. (1867) L. B. 2 C. F. 631, 36 

9. 2, ad. leg. Aqnil. 81. In a oivil L. J. C. P. 249, decided boweTer 

action it wonld probably be left to on the ground that the accident 

the jury- whether, on the whole, was whoUy due to the man's own 

the work was being done with want of care, 
reasonable care. 



EVIDENCE. 411 

"wits about him. And this is not because there is any 
fault in the person harmed, for there may well be no fault 
at all. Whatever we think, or a jury might think, of a 
blind man walking alone, it can hardly be deemed incon- 
sistent with common prudence for a deaf man to do so ; 
and it is known that colour-blind people, and those with 
whom they live, often remain ignorant of their failing 
until it is disclosed by exact observation or by some 
accident. It is not that the law censures a deaf man for 
not hearing, or a colour-blind one for not perceiving a red 
flag. The normal measure of the caution required from a 
lawful man must be fixed with regard to other men's 
normal powers of taking care of themselves, and abnormal 
infirmity can make a difference only when it is shown that 
in the particular case it was apparent. 

On the other hand it seems clear that greater care is Blstinc- 
required of us when it does appear that we are dealing the penon 
with persons of less than ordinary faculty. Thus if a man notice of" 
driving sees that a blind man, an aged man, or a cripple is special 
crossing the road ahead, he must govern his course and an inarm 
speed accordingly. He will not discharge himself, in the person, 
event of a mishap, merely by showing that a young and 
active man with good sight would have come to no harm. 
In like manner if one sees a child, or other person mani- 
festly incapable of normal discretion, exposed to risk from 
one's action, it seems that proportionate care is required ; 
and it further seems on principle immaterial that the child 
would not be there but for the carelessness of some parent 
or guardian or his servant. These propositions are not 
supported by any distinct authority in our law that I am 
aware oi{p). But they seem to follow from admitted 

{p) In the United States there is Cooley on Torts, 6S3 ; Beren on 
some : see Wharton, }§ 807, 310 ; Kegligenoe, 8, 



412. NEGLIGENCE. 

principles, and to throw some light on questions which 
arise under the head of contributory negligence. 

in. — Contributory Negligence. 

Aotionablo In order that a man's negligence may entitle another 
m^t^^ to a remedy against him, that other must have suffered 
PJ[^^°^*® harm whereof this negligence is a proximate cause. Now 
harm: I may be negligent, and my negligence may be the occa* 
plaintifTs sion of some one sufiering harm, and yet the immediate 
gwce^ *" ca^s® of the damage may be not my want of care but his 
immediate q-^^^ HdA I been careful to begin with, he would not 

caase, no ^ . 

remedj. haye been in danger ; but had he, being so put in danger, 
used reasonable care for his own safety or that of his 
property, the damage would stUl not have happened. 
Thus my original negligence is a oomparatively remote 
cause of the harm, and as things turn out the proxi- 
mate cause is the sufferer's own fault, or rather (since 
a man is under no positive duty to be cai^ful in his 
own interest) he cannot ascribe it to the fault of another. 
In a state of facts answering this general description 
the person harmed is by the rule of the common law 
not entitled to any remedy. He is said to be " guilty 
of contributory negligence;" a phrase well established 
in our forensic usage, though not free from objection. 
It rather suggests, as the ground of the doctrine, that a 
man who does not take ordinary care for his own safety 
is to be in a manner punished for his carelessness by 
disability to sue any one else whose carelessness was 
concerned in producing the damage. But this view 
is neither a reasonable one, nor supported by modem 
authority, and it is already distinctly rejected by writers 
of no small weight (9). And it stands ill with the 

{q) See Campbell, 180 ; Horaoe 8qq,<, who gives the same conoln- 
Smithy 226 ; and Wharton, §} 300 8ion« in a more elaborate form. 



CONTRIBUTORY NEGLIGENCE. 413 

oommon praotioe of our courts, founded on constant expe- 
rience of the way in which this question presents itself in 
real life. ^'The received and usual way of directing ai 
jury ... is to say that if the plaintiff could, by the 
exercise of such care and skill as he was bound to exercise, 
have avoided the consequence Of the defendant's negligence, 
he cannot recover" (r). That is to say, he is not to lose 
his remedy merely because he has been negligent at some 
stage of the business, though without that negligence the 
subsequent events might not or could not have happened ; 
but only if he has been negligent in the final stage and 
at the decisive point of the event, so that the mischief, as 
and when it happens, is immediately due to his own want 
of care and not to the defendant's. Again th'^ penal 
theory of contributory negligence fails to account for the 
accepted qualification of the rule, '^ namely, that though 
the plaintiff may have been guilty of negligence, and 
although that negligence may in fact have contributed 
to the accident, yet if the defendant could in the result, 
by the exercise of ordinary care and diligence, have 
avoided the mischief which happened, the plaintiff's neg- 
ligence will not excuse him " («) . And in the latest leading 
case, of which there will be more to say, the criterion of 
what was the proximate cause of the injury is adopted 
throughout (i^). 

The element of truth which the penal theory, as I have 
called it, presents in a distorted form, is that the rule is 

The use of snoh pluraaes &a in at p. 769. 

pari delietOf thoagh not without {t) Ths Bemina (1887) 12 P. D. 

authority, is likewise oonfusmg 36, 56 L. J. P. 38; a£Fd. nom. 

and objectionable. Millt y, Armstrong (1888) 13 App. 

(r) Lord Blaokbum, 3 App. Ga. Ga. 1, 57 L. J. P. 65 ; see espe- 

at p. 1207. dally the judgment of Lindley 

(«) Loid Penzance, BadleyY. L. L. J., and cp. Little y. Eaekiti 

# N. W. M, Co, (1876) 1 App. Ca. (1886) 116 U. S. 366, 371. 



414 NEGUGENCE. 

not merely a logioal deduction, but is founded in publio 
utility. "The ultimate justification of the rule is in 
reasons of policy, yiz. the desire to prevent accidents by 
inducing each member of the oonununity to act up to the 
standard of due care set by the law. If he does not, he is 
deprived of the assistance of the law " (u). 
TufY, The leading case which settled the doctrine in its 

modem form is Tu^ y. Warm an (x). The action was 
against the pilot of a steamer in the Thames for running 
down the plaintiff's barge; the plaintiff's own eyidenoe 
showed that there was no look-out on the barge ; as to the 
conduct of the steamer the evidence was conflicting, but 
according to the plaintiff's witnesses she might easily 
have cleared the barge. Willes J. left it to the jury to 
say whether the want of a look-out was negligence on 
the part of the plaintiff, and if so, whether it " directly 
contributed to the accident." This was objected to as too 
favourable to the plaintiff, but was upheld both in the 
fuU Court of Common Pleas and in the Exchequer 
Chamber. In the considered judgment on appeal (y) it is 
said that the proper question for the jury is " whether 
the damage was occasioned entirely by the negligence or 
improper conduct of the defendant, or whether the plaintiff 
himself so far contributed to the misfortime by his own 
negligence or want of ordinary and common care and 
caution that, but for such negligence or want of ordinary 
care and caution on his part, the misfortune would not 
have happened." But negligence will not disentitle the 
plaintiff to recover, unless it be such that without it the 
harm complained of would (z) not have happened ; " nor 

(m) W. Sbhofteld in Harv. Law (1867-8). 
Bev. iu. 270. (y) 6 0. B. N. S. at p. 586. 

{x) 2 C. B. N. S. 740, 6 0. B. (£) Not << could:" see Beren on 

N. S. 673, 27 L. J. G. F. 322 Negligence, 182. 



CONTRIBUTORY NEGLIGENCE. 415 

if the defendant might by the exeroise of care on his part 
haye avoided the consequences of the neglect or care- 
lessness of the plaintiff." 

In Radley v. London and North Western Railway Co, (a), Radley v. 
this doctrine received a striking confirmation. ^, co. 

The defendant railway company was in the habit of 
taking full trucks from the siding of the plaintiffs, coUiery 
owners, and returning the empty trucks there. Over this 
siding was a bridge eight feet high from the ground. On 
a Saturday afternoon, when aU the coUiery men had left 
work, the servants of the railway ran some trucks on the 
siding and left them there. One of the plaintiffs' men 
knew this, but nothing was done to remove the trucks. 
The first of these trucks contained another broken-down 
truck, and their joint height amounted to eleven feet. On 
the Sunday evening the railway servants brought on the 
siding a line of empty trucks, and pushed on in front of 
them all those previously left on the siding. Some resist- 
ance was felt, and the power of the engine pushing the 
trucks was increased. The two trucks at the head of the 
line, not being able to pass under the bridge, struck it and 
broke it down. An action was brought to recover damages 
for the injury. The defence was contributory negligence, 
on the ground that the plaintiffs' servants ought to have 
moved the first set of trucks to a safe place, or at any rate 
not have left the piled-up truck in a dangerous position. 
The judge at the trial told the jury that the plaintifb 
must satisfy them that the accident ^^ happened by the 
negligence of the defendants' servants, and without any 
contributory negligence of their own ; in other words, that 

(a) 1 App. Ca. 764, 46 L. J. Ex. 100, and restoring that of the Coart 
673, reversing the judgment of the of the Exchequer, L. B. 9 Ex. 71 
Exchequer Chamber, L. B. 10 Ex. ' (1874-6). 



*16 NEGLIGENCE. 

it was solely hy the negligence of the defendants' ser-^ 
vants." 

On these faots and under this direction the jury found 
that there was contributory negligence on the part of the 
plaintifisy and a verdict was entered for the defendants. 
The Court of Exchequer {b) held that there was no evi- 
dence of contributory negligence, chiefly on the ground 
that the plaintiffs were not bound to expect or provide 
against the negligence of the defendants. The Exchequer 
Chamber {c) held that there was evidence of the plaintifb 
having omitted to use reasonable precaution, and that the 
direction given to the jury was sufficient. In the House 
of Lords it was held {d) that there was a question of fact 
for the jury, but the law had not been sufficiently stated 
to them. They had not been clearly informed, as they 
should have been, that not every negligence on the part of 
the plaintiff which in any degree contributes to the mis- 
chief will bar him of his remedy, but only such negligence 
that the defendant could not by the exercise of ordinary 
oare have avoided the result. 

" It is true that in part of his summing-up, the learned 
judge pointed attention to the conduct of the engine- 
driver, in determining to force his way through the 
obstruction, as fit to be considered by the jury on the 
question of negligence ; but he failed to add that if they 
thought the engine-driver might at this stage of the 
matter by ordinary care have avoided all accident, any 
previous negligence of the plaintiffs would not preclude 
them from recovering. 

** In point of fact the evidence was strong to show that 

{b) Bramwell and Amphlett BB. {d) By Lord Penzance, Lord 

{e) Blaokbum, Mellor, Lnsh, GaimB, Lord Blaokbam (thiu re- 

Groye, Brett, Archibald JJ. ; diu, traoting hia opinion in the Ex. 

Denman J. Gh.), and Lord Gordon. 



CONTRIBUTOET NEGUGENCaE. 417 

UbiB was the immediate cause of the accident, and the jury 
might well think that ordinary care and diHgenoe om the 
part of the engine-driver would, notwithstanding any 
previous negligence of the plaintiffs in leaving the loaded- 
up truck on the line, have made the accident impossible. 
The substantial defect of the learned judge's charge is that 
that question was never put to the jury " (e). 

This leaves no doubt that the true yronnd nf nnnfn'Tw, «*Proxi- 
tory negligence being a bar to recovery , is that it is the ^ecmvo" 
proximate cause of fhft mTflC^^<?^i flfld ift^gUgfiBff^ ^H t^^ <»^b«^ 



plaintiff 's part whi ch is on l:^ art_QHhe induci ng^ causes (/) 
will not disable him. I say " the proximate cause," con- 
sidering the term as now established by usage and 
authority. But I would still suggest, as I did in the 
first edition, that '^ decisive " might convey the meaning 
more exactly. For if the defendant's original negligence 
was so far remote from the plaintiff's damage as not to be 
part at least of its '^ proximate cause " within the more 
general meaning of that term, the plaintiff would not have 
any case at all, and the question of contributory negligence 
could not arise. We shall immediately see, moreover, that 
independent negligent acts of A. and B. may both be 
proximate in respect of harm suffered by Z., though either 
of them, if committed by Z. himself, would have prevented 
him from having any remedy for the other. Thus it 
appears that the term ^'proximate" is not used in pre- 
cisely the same sense in fixing a negligent defendant's 
UabiUty and a negligent plaintiff's disability. 

The pl aintiff's neglige nce, if it is to disable him. has 
to be somehow more pro ximat e them the defendant's. It 

(e) Lord Penzance, 1 App. Ca. theoontrastof ^'oauBe" and ^'oon- 
atp. 760. ditioxi" is dangerous to refine 

(/) Or, as Mr. Wliarton puts it, upon : the deep waters of philoso- 

not a cause but a condition. But phy are too near. 

P. E E 



418 NEQLIGKNOE. 

seems dangerously ambiguous to use ^^ proximate" in a 
special emphatio sense without further or otherwise marking 
the difierenoe. If we said " deaisive " we should at any 
rate avoid this danger. 

creafced It would seem that a person who has by his own act or 

to avoid default deprived himself of ordinary ability to avoid the 
^'^'"^" . oonsequenoes of another's negligence can be in no better 
another's position than ify having such ability, he had failed to 
gence. avoid them ; unless, indeed, the other has notice of his 
inability in time to use care appropriate to the emergency ; 
in which case the failure to use that care is the decisive 
negligence. A. and B. are driving in opposite directions 
on the same road on a dark night. B. is driving at a 
dangerous speed, and A. is asleep, but B. cannot see that 
he is asleep. Suppose that A., had he been awake, might 
have avoided a collision by ordinary care notwithstanding 
B.'s negligence. Can A. be heard to say that there is no 
contributory negligence on his part because he was asleep ? 
It seems not. Suppose, on the other hand, that the same 
thing takes place by daylight or on a fine moonlight night, 
so that B. would with common care and attention perceive 
A.'s condition. Here B. would be bound, it seems, to use 
special caution no less than if A. had been disabled, say 
by a sudden paralytic stroke, without de&tult of his own. 
So if a man meets a runaway horse, he cannot tell whether 
it is loose by negligence or by inevitable accident, nor can 
this make any difference to what a prudent man could 
or would do, nor, therefore, to the legal measure of the 
diligence required {g), 

EarKer Cases earlier than Tuffy. Warman (h) are now material 

111 x^. 

tioDB : only as illustrations* A celebrated one is the ** donkey 

iff) Cp.Mr.W.Schofield^sartiole (A) 6 0. B. N. S. 678, 27 L. J. 
in Hary. Law Bev. iii. 263. C. P. 822. 



CX)NTRIBUTOBY NEaUGENCE. 419 



case/' BaeiM y, ^ann ( t\. Thiere the plaintiff had turned i>«<^»« v.| c 

his ass loose in a highwaj "with its forefeet fettered, and it 

Teas ran over by the defendant's waggon, going at "a 

smartish pace." It was held a proper direction to the 

jiuy that, whatever they thought of the plaintiff's oonduot, 

he was still entitied to his remedy if the acoident might 

have been avoided by the exercise of ordinary care on the 

part of the driver. Otherwise ^^ a man might justify the 

driving over goods left on a public highway, or even over 

a man lying asleep there, or the purposely running against 

a carriage going on the wrong side of the road" (j). With 

this may be compared the not much later case of Mayor of 

Colchester v. Brooke (^), where it was laid down (among 

many other matters) that if a ship runs on a bed of 

oysters in a river, and could with due care and skill have 

passed clear of them, the fact of the oyster-bed being a 

nuisance to the navigation does not afford an excuse. 

The facts of Daviea v. Mann suggest many speculative 

variations, and the decision has been much and not always 

wisely discussed in America, though uniformly followed 

in this country (/). 

Butterfield v. Forreste r (m) is a good example of obvious ButurfiM I ^ 
fault on both sides, where the plaintiff's damage was im- tir. ' i 
mediately due to his own want of care. The defendant 
had put up a pole across a public thoroughfare in Derby, 
which he had no right to do. The plaintiff was riding 
that way at eight o'dock in the evening in August, when 



(t) 10 M. ft W. 646, 12 L. J. (*) 7 Q. B. 839, 876, 15 L. J. 

Ex. 10 (1842). Q. B. 60. 

U) Pftrke B., 10 M. k W. at (/) See Harv. Law Eev. iii. 272 

p. 649 ; op. his judgment in J?ru^# —276. 

y. Orand Junetim S. Co, (1888) 3 (m) 11 East 60, 10 B. B. 488 

H. ft W. at p. 248. (1809). 

E E 2 



420 NEGLIGENCE. 

dufik was ooming on, but the obstruotLon was still visiblo a 
hundred yards off : he was riding Tiolently, oame against 
the pole, and fell with his horse. It was left to the jury 
whether the plaintifi, riding with reasonable and ordinary 
care, oould have seen and avoided the obstruction ; if they 
thought he oould, they were to find for the defendant; 
and they did so. The judge's direction was affirmed on 
motion for a new trial. *^ One person being in fault will 
not dispense with another's using ordinary care for him- 
self." Here it can hardly be said that the position of the 
pole across the road was not a proximate cause of the fall. 
But it was not the whole proximate cause. The other and 
decisive cause which concurred was the plaintifi's failure to 
see and avoid the pole in his way. 

On the whole, then, if the plaintiff's '^ fault, whether of 
omission or of commission, has been the proximate cause 
of the injury, he is without remedy against one also in 
the wrong" (n). On the other hand, if the defendant's 
fault has been the proximate cause he is not excused 
erely by showing that the plaintiff's fault at some 
lier stage created the opportunity for the fault which 
was that cause (o). If it is not possible to say whether 
the plaintiff's or the defendant's negligence were the 
proximate (or decisive) cause of the damage, it may be 
said that the plaintiff cannot succeed because he has failed 
to prove that he has been injured by the defendant's 
negligence {p). On the other hand it might be suggested 
that, since contributory negligence is a matter of defence 
of which the burden of proof is on the defendant (^), the 

(f») LittU V. Saekeit (1886) 116 (p) PerLindley L. J., The Ber- 

U. S. 366, 371 ; ButUrJUld v. Jbr- nina, 12 P. D. 68, 89. 
miifi last page. (q) Lord Watflon (Lord Blaok- 

(o) Radley y. Z. ^ N, W. R, Co. ; .bum agreeing'), Wakelin y. L, ^ 8. 
Dav%e9 y. Mann. W» R, Co, (1886) 12 App. Oa. at 

pp. 47—49. 




CONTRIBUTOEY NEGLIGENCE. 421 

defendant would in suoh a ease have failed to make 
OTit his defence, and the plaintiff, having proved that the 
defendant's negligence was a proximate cause if not the 
whole proximate cause of his damage, would still be 
entitled to succeed. The defendant must allege and prove 
not merely that the plaintiff was negligent, but that the 
plaintiff could by the exercise of ordinary care have 
avoided the consequences of the defendant's negligence (r). 
It is a question, either way, whether the plaintiff shall 
recover his whole damages or nothing, for the common 
law, whether reasonably or not («), has made no provision 
for apportioning damages in such cases. A learned writer 
(whose preference for being anonymous I respect but 
regret) has suggested that ^' hardly sufficient attention has 
been paid herein to the distinction between cases where 
the negligent acts are aimultaneous and those where they 
are successive. In regard to the former class, such as 
Dublifiy Wickhw 8f Wexford Ry. Co. v. Slattery (^), or the 
case of two persons colliding at a street comer, the rule is, 
that if the plaintiff could by the exercise of ordinary care 
have avoided the accident he cannot recover. In regard to 
the latter class of cases, such as Davies v. Mann {u) and 
Radley v. L. §• N. W. Ry. Co. (a?), the rule may be stated 
thus : that he who last has an opportunity of avoiding the 
accident^ notwithstanding the negligence of the other, is solely 
responsible. And the ground of both rules is the same : 
that the law looks to the proximate causCy or, in other 
words, will not measure out responsibility in halves or 
other fractions, but holds that person liable who was in the 
main the cause of the injury " (y). 

(r) Bridife y. Grand Junction R. (m) 12 M. ft W. 546. 

Co. (1838) 3 M. ft W. 248. \x) I App. Ca. 754, 46 L. J. Ex. 

(<) See per Lmdle^ L. J., 12 P. 578. 

D. 89. (y) L. Q. B. V. 87. 

(0 8 App. Ga. 1165. 



423 NEOLIQENOE. 

Another kind of question arises where a person is 
injured without any fault of his own, but by the combined 
eSeots of the negligence of two persons, of whom the one 
is not responsible for the other. It has been supposed 
that A. oould avaU himself, as against Z. who has been 
injured without any want of due oare on his own part, of 
the so-oalled contributory negligence of a third person B. 
" It is true you were injured by my negligence, but it 
would not have happened if B. had not been negligent 
also, therefore you cannot sue me, or at all eyents not 
apart from B." Becent authority is decidedly against 
allowing such a defence, and in one particular class of cases 
it has been emphatically disallowed. It must, however, 
be open to A. to answer to Z. : *^ You were not injured 
by my negligence at all, but only and wholly by B.'s." It 
seems to be a question of fact rather than of law what 
respective degrees of connexion, in kind and degree, 
between the damage suffered by Z. and the independent 
negligent conduct of A. and B. will make it proper to say 
that Z. was injured by the negligence of A. alone, or of 
B. alone, or of both A. and B. But if this last conclusion 
be arrived at, it is now quite clear that Z. can sue both A. 
and B. (2). 

The ex- In a case now overruled, a different doctrine was set up 

Soothe of '''^^oh, although never willingly received and seldom acted 

" identi-^ oh^ remained of more or less authority for nearly forty 

years. The supposed rule was that if A. is travelliQg 

in a vehicle, whether carriage or ship, which belongs to B. 

and is under the control of B.'s servants, and A. is injured 

I in a collision with another vehicle belonging to Z., and 

(s) ZiitU Y. Hackett (1886) 116 Thorogood v. Bryan (1849) 8 C. B. 
U. 8. 366 ; MUU v. Armatnmg 115, 18 L. J. C. P. 336. 
(1888) 13 App. Ca. 1, OYemilmg 



1M)CTRINE OF ** IDENTIPICATION." 423 

under the oontrol of Z.'8 servantB, which oollifiion is caused ) 
partly by the negligence of B.'s servants and partly by 
that of Z.'b servants, A. cannot recover against Z. The 
passenger, it was said, must be considered as having in 
some sense '^ identified himself " with the vehicle in which 
he has chosen to travel, so that for the purpose of com- 
plaining of any outsider's negligence he is not in any 
better position than the person who has the actual con- 
trol (a). It is very difficult to see what this supposed 
" identification " really meant. With regard to any actual 
facts or intentions of parties, it is plainly a figment. No 
passenger carried for hire intends or expects to be answer- 
able for the negligence of the driver, guard, conductor, 
master, or whoever the person in charge may be. He 
naturally intends and justly expects, on the contrary, to 
hold eveiy such person and his superiors answerable to 
himself. Why that right should exclude a concurrent right 
against other persons who have also been negligent in the 
same transaction was never really explained. Yet the 
eminent judges (&) who invented "identification'' must 
have meant something. They would seem to have assumed, 
rather than concluded, that the plaintiff was bound to 
show, even in a case where no negligence of his own was 
alleged, that the defendant's negligence was not only a 
cause of the damage sustained, but the whole of the cause. 
But this is not so. The strict analysis of the proximate or 
immediate cause of the event, the inquiry who could last 
have prevented the mischief by the exercise of due care, 
is relevant only where the defendant says that the plaintiff 
Buffered by his own negligence. Where negligent acts of 
two or more independent persons have between them 

(a) Judgments in I%orogood y. (b) Coltman, Hanle, Oreeswell, 

JBryan, see 12 P. D. at pp. 64-~67» and Yaugban WiUiams JJ. 
13 App. Ca. at pp. 6, 7, 17. 



424 NEGLIQENCE. 

oaiued damdge to a third, the sufferer is not driyen to 
apply any such analysis to find out whom he oan sue. He 
is entitled — of oourse within the limits set by the general 
rules as to remoteness of damage — ^to sue all or any of the 
negligent persons. It is no eonoem of his whether there 
is any duty of oontribution or indemnity as between those 
persons, though in any ease he plainly cannot reoover in 
the whole more than his whole damage. 

The phrase "contributory negligence of a third person," 
which has sometimes been used, must therefore be rejected 
as misleading. Peter, being sued by Andrew for causing 
him harm by negligence, may prove if he can that not his 
negligence, but wholly and only John's, harmed Andrew. 
It is iiseless for him to show that John's negligence was 
" contributory " to the harm, except so far as evidence 
which proved this, though failing to prove more, might 
practically tend to reduce the damages. 

It is impossible to lay down rules for determining 
whether harm has been caused by A.'s and B.'s negligence 
together, or by A.'s or B.'s alone. The question is essen- 
tially one of fact. There is no reason, however, why joint 
negligence should not be successive as well as simultaneous, 
and there is some authority to show that it may be. A 
wrongful or negligent voluntary act of Peter may create 
a state of things giving an opportunity for another wrong- 
ful or negligent act of John, as well as for pure accidents. 
If harm is then caused by John's act, which act is of a 
kind that Peter might have reasonably foreseen, Peter and 
John may both be liable ; and this whether John's act be 
wilful or not, for many kinds of negligent and wilf uUy 
wrongful acts are unhappily common, and a prudent man 
cannot shut his eyes to the probability that somebody will 
commit them if temptation is put in the way. One is not 
entitled to make obvious occasions for negligence. A. 



NEGLIGENCE OF THIBD PERSON. 425 

leaves the flap of a cellar in an insecure position on a high- 
way where all manner of persons, adult and infant, wise 
and foolish, are accustomed to pass. B. in carelesslj 
passing, or playing with the flap, brings it down on him- 
self, or on C. In the former case B. has suffered from his 
own negligence and cannot sue A. In the latter B. is 
liable to C. but it may well be that a prudent man in A.'s 
place would have foreseen and guarded against the risk of 
a thing so left exposed in a public place being meddled 
with by some careless person, and if a jury is of that 
opinion A. may also be liable to C. (c). Where A. placed 
a dangerous obstruction in a road, and it was removed by 
some unexplained act of an unknown third person to 
another part of the same road where Z., a person lawfully 
using the road, came against it in the dark and was injured, 
A. was held liable to Z., though there was nothing to 
show whether the third person's act was or was not lawful 
or done for a lawful purpose {d). 

Another special class of cases requires consideration. If Aoddent-s 

A. is a child of tender years (or other person incapable of in oustody 
taking ordinary care of himself), but in the custody of M., ^^ *^^** 
an adult, and one or both of them suffer harm under 
circumstances tending to prove negligence on the part of 

Z., and also contributory negligence on the part of M. {e)y 
Z. will not be liable to A. if M.'s negligence alone was the 
proximate cause of the mischief. Therefore if M. could, 
by such recusonable diligence as is commonly expected of 

{e) Sughe$ v. Maejie (1868) 2 H. ($) JTaite v. N. E. R. Co, (1869) 

& G. 744, 33 L. J. Ex. 177 ; and Ex. Gh. £. B. & E. 719, 27 L. J. 

see Clark t. Chambers (1878) 3 Q. Q. B. 417, 28 L. J. Q. B. 268. 

B. D. at pp. 330—336, p. 43, This caae is expressly left nn- 

aboTe ; JHxon v. Bell, 6 M. & 8. tonohed by Mills v. Armstrong , 13 
198, 17 B. B. 308, p. 468, below. App. Ca. 1 (see at pp. 10, 19), 67 
[d) Clark y. Chambers^ last note. L. J. P. 66). 



426 NEGLIGENCE. 

personfl having the oare of young children, have avoided 
the oonflequenceB of Z.'s negligence, A. is not entitled to 
Bue Z. : and this not because M/s negligence is imputed by 
a fiction of law to A., who bj the hypothesis is incapable 
of either diligence or negligence, but because the needful 
foundation of liability is wanting, namely, that Z.'s negli- 
gence, and not something else for which Z. is not answer- 
able and which Z. had no reason to anticipate, should be 
the proximate cause. 

Children, Now take the case of a child not old enough to use ordi- 
attendfid. nary care for its own safety, which by the carelessness of 
the person in charge of it is allowed to go alone in a place 
where it is exposed to danger. If the child comes to 
harm, does the antecedent negligence of the custodian 
make any difference to the legal result P On principle 
surely not, unless a case can be conceived in whidi that 
negligence is the proximate cause. The defendant's duty 
can be measured by his notice of special risk and his 
means of avoiding it ; there is no reason for making it 
vary with the diligence or negligence of a third person in 
giving occasion for the risk to exist. If the defendant is 
so negligent that an adult in the plaintiff's position could 
not have saved himself by reasonable care, he is liable. 
If he is aware of the plaintiff's helplessness, and fails to 
use such special precaution as is reasonably possible, then 
also, we submit, he is liable. If he did not know, and 
could not with ordinary diligence have known, the plain- 
tiff to be incapable of taking care of himself (/), and has 
used such diligence as would be sufficient towards an 
adult ; or if, being aware of the danger, he did use such 
additional caution as he reasonably could ; or if the facts 

(/) This might happen in Tarions vajs, hj xeaion of darlmciM or 
otheirwiae. 



NEQLIQENCE OF THIBD PEBSON. 



427 



were suoh that no additional oantion was praotioable, and 
there is no evidence of negligence according to the ordinary 
standard (^), then the defendant is not liable. 

No English decision has been met with that goes the 
length of depriving a child of redress on the ground that 
a third person negligently allowed it to go alone (A). In 
America there have been eaoh decisions in Massachu- 
setts {i)f New York, and elsewhere : ^^ but there are as 
many decisions to the contrary " {J) : and it is submitted 
that both on principle and according to the latest authority 
of the highest tribunals in both countries they are right. 

In one peculiar case {k) the now exploded doctrine of Child y. 
" identification " (/) was brought in, gratuitously as it would ^*^' 
seem. The plaintiff was a platelayer working on a rail- 



(y) SingUUmy, E. C. B. Co, (1889) 
7 G. B. N. S. 287, is a case of thlB 
Idndy as it was decided not un the 
fiotion of imputing a third person's 
negligence to a child, bnt on the 
ground (whether rightly taken or 
not) that there was no evidence of 
negligence at all. 

(A) Mangan v. AtterUm (1866) L. 
B. 1 Ex. 239, 36 L. J. Ex. 161, 
comes near it. Bat that case went 
partly on the g^und of the damage 
being too remote, and since Clark 
y. Chambers (1878) 3 Q. B. D. 327, 
47 L. J. Q. B. 427, supra, p. 43, it 
is of doubtful authority. For our 
own part we think it is not law. 
Op. Mr. Campbell's note to Dixim 
Y.Bell, 17B. B.808. 

(i) Holmes, The Common Law, 
128. 

{J) Bigelow L. C. 729, and see 
Horace Smith 241. In Vermont 
{BQbitwm y. Cone^ 22 Yt. 213, 224, 
ap, Cooley on Torts, 681) the yiew 
maintained in the text is distinotly 



taken. *'We are satisfied that, 
although a child or idiot or lunatio 
may to some extent haye escaped 
into the highway, through the 
fault or negligence of his keeper, 
and so be improperly there, yet if 
he is hurt by the negligence of the 
defendant, he is not precluded from 
his redress. If one know that 
such a person is on the highway, 
or on a railway, he is bound to a 
proportionate degree of watchful- 
ness, and what would be but ordi- 
nary neglect in regard to one whom 
the'def endant supposed a person of 
full age and capacity, would be 
gross neglect as to a child, or one 
known to be incapable of escaping 
danger." So, too, Bigelow 730, 
and IfewmanT, PhiUipeburg Sorte 
Car Co,, 62 N. J. 446, Jer. Smith, 
2 Sel. Ca. on Torto, 212. 

{k) Child y. Seam (1874) L. B. 
9 Ex. 176, 43 L. J. Ex. 100. 

(I) P. 432, aboye. 



428 



NEGLIGENCE. 



way ; the railway oompany was by statute bound to mam- 
tain a fence to prevent animals (m) from straying off the 
adjoining land ; the defendant was an adjacent owner who 
kept pigs. The fence was insufficient to keep out pigs (n). 
Some pigs of the defendant's found their way on to the 
line, it did not appear how, and upset a trolly worked by 
hand on which the plaintiff and others were ridiug back 
from their work. The plaintiff's case appears to be bad on 
one or both of two grounds ; there was no proof of actual 
negligence on the defendant's part, and eyen if his 
common-law duty to fence was not altogether superseded, 
as regards that boundary, by the Act casting the duty on 
the railway company, he was entitled to assume that the 
company would perform their duty ; and also the damage 
was too remote (o). But the ground actually taken was 
" that the servant can be in no better position than the 
master when he is using the master's property for the 
master's purposes," or ^' the plaintiff is identified with the 
land which he was using for his own convenience." This 
ground would now clearly be untenable. 



I Admiralty The common law rule of contributory negligence is 
unknown to the maritime law administered in courts of 



I diTiding 



Admiralty jurisdiction. Under a rough working rule 
commonly called judicium f^mticum, and apparently de- 
rived from early medieval codes or customs, with none of 
which, however, it coincides in its modem application (^), 



(m) <<Gatile,'* held by the Court 
to inolnde pigs. 

(») That is, pigs of ayerage 
Tigoor and obstinaoy ; see per 
Bramwell B., whose jndgment 
(pp. 181, 182) is almost a cari- 
oature of the general idea of the 
''reasonable man." It was al- 
leged, but not found as a faot^ that 



the defendant had prerionsly been 
warned by some one of his pgs 
being on the line. 

(o) Note in Addison on Torts, 
5th ed. 27. 

(p) Marsden on Collisions at 
Sea, ch. 6 (3d ed.), and see an 
article by the same writer in L. Q. 
B. ii. 367. 



DIVISION OF |X)8S IN ADMIBALTY CASES. 



429 



the loBS is equally divided in oases of oollision where both 
ships are found to have been in fault. " The ancient rule 
applied only where there was no fault in either ship " {q) ; 
as adopted in England, it seems more than doubtful 
whether the rule made any distinction, until quite late in 
the eighteenth oentury, between oases of negligence and 
of pure accident. However that may be, it dates from a 
time when any more refined working out of principles 
was impossible (r). As a rule of thumb, which frankly 
renounces the pretence of being anything more, it is not 
amiss, and it appears to be generally accepted by those 
whom it concerns, although, as Mr. Marsden's researches 
have shown, for about a century it has been applied for a 
wholly different purpose from that for which it was intro- 
duced in the older maritime law, and in a wholly different 
class of cases. By the Judicature Act, 1873 (a), the 
judicium rusticum is expressly preserved in the Admiralty 
Division. 



I 



IV. — Auxiliary Rules and Presumptions. 

There are certain conditions under which the normal Aotdoo 
standard of a reasonable man's prudence is peculiarly diffi^tj 
difficult to apply, by reason of one party's choice of alter- ^^J^^^^ 
natives, or opportunities of judgment, being affected by T^^f;"^- 

genoe. 



(q) Op, eit. 130. 

(r) Writen on maritiiiie law state 
the role of the common law to be 
.that when both ahipe aie in f anlt 
neither can recoYer anything. This 
maj have been practically so in the 
first half of the century, but it is 
neither a complete nor a correct 
Tersion of the law laid down in 
TitfY. Warman, 6 C. B. N. 8. 673, 
27 L. J. G. P. 322. As long ago 



as 1838 it was distinctly pointed 
ont that ''there may have been 
negligence in both parties, and yet 
the plaintiff may be entitled to 
recover : *' Parke B. in Bridge t. 
Orand Junction J2. Cb., 3 M. & W. 
244, 248. 

($) S. 25, snb-s. 9. The first 
intention of the framers of the 
Act was otherwise. See Marsden, 
p. 134, 3d ed. 



430 KEGLIGENGE* 

the oonduot of the other. Such diffioultieB ooonr mostly 
in questionB of contributory negligenoe. In the first plaoe^ 
a man who by another's -want of care finds himself in a 
position of imminent danger cannot be held guilty of 
negligenoe merely because in that emergency he does not 
act in the best way to avoid the danger. That which 
appears the best way to a court examining the matter 
afterwards at leisure and with full knowledge is not 
necessarily obvious even to a prudent and skilful man on 
a sudden alarm. Still less can the party whose fault 
brought on the risk be heard to complain of the other's 
error of judgment. This rule has been chiefly applied in 

(maritime cases, where a ship placed in peril by another's 
improper navigation has at the last moment taken a 
wrong course («) : but there is authority for it elsewhere. 
A person who finds the gates of a level railway crossing 
open, and is thereby misled into thinking the line safe for 
Grossing, is not bound to minute circumspection, and if he 
is run over by a train the company may be liable to him 
although '^ he did not use his faculties so clearly as he 
might have done under other ciroumstanoes " (t). ^'One 
should not be held too strictly for a hasty attempt to 
avert a suddenly impending danger, even though his effort 
is ill-judged " (w). 

Kodatyto One might generalize the rule in some such form as 

neg^aoe this : not only a man cannot with impunity harm others 

of otlieM. ^^y j^ negligence, but his negligence cannot put them in 

a worse position with regard to the estimation of default. 

(*) The ByweU Ctutte (1879) 4 P. (0 JT. F. S. Co. v. Wanleit 

DiT. 219 ; Tht Tasmania (1890) 16 (1874) L. E. 7 H. L. at p. 16 ; cp. 

App. Ca. 223, 226, per Lord Her- SlatUryU ea. (1878) 3 App. Ca. at 

sdiell ; and see other examples ool- p. 1193. 

lected in Manden on CollisionB at (») Briffps y. Umon Street My. 

Sea, pp. 4, 5, 8d ed. (1888) 148 HasB. 72, 76. 



ANTICIPATED NEGUOENCE. 431 

You shall not driye a man into a sitoation where there Is 
loss or risk eyery way, and then say that he suffered hj 
his own imprudence. Neither shall jou complain that he 
did not foresee and provide against your negligence. We 
are entitled to count on the ordinary prudence of our 
fellow-men until we have specific warning to the contrary. 
The driver of a carriage assumes that other vehicles will 
observe the rule of the road, the master of a vessel that 
other ships will obey the statutory and other rules of 
navigation, and the like. And generally no man is bound 
(either for the establishment of his own daims, or to avoid 
claims of third persons against him) to use special pre- 
caution against merely possible want of care or skill on the 
part of other persons who are not his servants or under his 
authority or control {x). 

It is not, as a matter of law, negligent in a passenger 
on a railway to put his hand on the door or the window- 
rod, though it might occur to a very prudent man to try 
first whether it was properly fastened ; for it is the com- 
pany's business to have the door properly fastened (^). 
On the other hand if something goes wrong which does 
not cause any pressing danger or inconvenience, and the 
passenger comes to harm in endeayouring to set it right 
himseU, he cannot hold the company liable (z). 

We have a somewhat different case when a person, Choioeof 
having an apparent dilemma of evils or risks put before ,„^^„ 

{x) See Daniel v. Metrop, JR. Oo» jury. 

(1871) KB. 5 H. L. 46, 40 L. J. («) This is the prinoiple applied 

C. P. 121. in Adam y. X. # T. B. Co, (1869) 

(y) Gee y. Meirop. B. Co. (1873) L. B. 4 C. P. 739, .38 L. J. C. P. 

£z. Ch. L. B. 8 Q. B. 161, 42 277, thongh (it seemfl) not zighUj 

L. J. Q. B. 105. There was some in the partiealar case ; see in Gee 

diflerenoe of opinion how far the y. Metrop. B. Co. L. B. 8 Q. B. at 

question of contributory negligence pp. 161, 173, 176. 
in fact was fit to he put to the 



432 



NEGLIGENCE. 



streBSof 
another's 
negli- 
genoe. 



him by another'B def ault, makes an aotive choice between 
them. The principle applied is not dissimilar: it is not 
necessarily and of itself contributory negligence to do 
something which, apart from the state of things due to 
the defendant's negligence, would be imprudent. 



ciayardtY, Xhc earliest case where this point is distinctly raised 
and treated by a full Court is Clayarth y. Deihick (a). The 
plaintiff was a cab-owner. The defendants, for the pur- 
pose of making a drain, had opened a trench along the 
passage which afforded the only outlet from the stables 
occupied by the plaintiff to the street. The opening was 
not fenced, and the earth and gravel excavated from the 
trench were thrown up in a bank on that side of it where 
the free space was wider, thus increasing the obstruction. 
In this state of things the plaintiff attempted to get two 
of his horses out of the mews. One he succeeded in lead- 
ing out over the gravel, by the advice of one of the defen- 
dants then present. With the other he failed, the rubbish 
giving way and letting the horse down into the trench. 
Neither defendant was present at that time (6). The jury 
were directed '^ that it could not be the plaintiff's duty to 
refrain altogether from coming out of the mews merely 
because the defendants had made the passage in some 
degree dangerous : that the defendants were not entitled 



(a) 12 Q. B. 439 (1848). The 
rule wae laid down by Lord Ellen- 
borongh at nisi priixs as early as 
1816 : Jimet v. Boye^, 1 Stark. 493, 
cited by Montague Smith J., L. B. 
4 G. P. at p. 743. The plaintiff 
was an outside passenger on a 
ooaohy and jumped off to avoid 
what seemed an imminent upset ; 
the coaoh was however not upeot. 
It was left to the jury whether by 



<( 



the defendant's faidt he ** was 
placed in such a situation as to 
render what he did a prudent pre- 
caution for the purpose of self- 
preservation." 

{b) Evidence was given by the 
defendants, but apparently not 
believed by the jury, that their 
men expressly warned the plaintiff 
against the couree he took. 



CHOICE OP RISKS. 433 

to keep the ocoapiers of the mews in a state of siege till 
the passage was declared safe, first creating a nuisance 
and then excusing themselves by giving notice that there 
was some danger : though if the plaintiff had persisted in 
running upon a great and obvious danger, his action 
could not be maintained." This direction was approved. 
Whether the plaintiff had suffered by the defendants' 
negligence, or by his own rash action, was a matter of 
fact and of degree properly left to the jury : " the whole 
question was whether the danger was so obvious that 
the plaintiff could not with common prudence make the 
attempt." The decision has been adversely criticised by 
Lord Bramwell, but principle and authority seem on the 
whole to support it (c). 

One or two of the railway cases grouped for practical ) 
purposes under the catch-word '^invitation to alight" 
have been decided, in part at least, on the principle that» 
where a passenger is under reasonable apprehension that 
if he does not alight at the place where he is (though an ' 
unsafe or unfit one) he will not have time to alight at all, * 
he may be justified in taking the risk of alighting as best ' 
he can at that place (d) ; notwithstanding that he might, ( 
by declining that risk and letting himself be carried on to 
the next station, have entitled himself to recover damages , 
for the loss of time and resulting expense {e). i 

There has been a line of cases of this class in the State Doctrine 
of New York, where a view is taken less favourable to the York 

Courts. 

(c) Bee AppendixB. to Smith on 86, 46 L. J. Q. B. 50) ; Bote y. 2f, 

Negligence, 2d ed. I agree with £. M. Co, (1876) 2 Ex. Div. 248, 

Hr. Smith's obeenrations ad Jin., 46 L. J. Ex. 374. 
p. 279. («) Contra BramweU L. J. in Lax 

{d) Bobion v. If. B. B. Co. v. Corporation of Darlington (1879) 

(1875-6) L. B. 10 Q. B. 271, 274, 5 Ex. D. at p. 35; but the last- 

44 L. J. Q. B. 1 12 (in 2 Q. B. Dir. mentioned cases had not been cited. 

P. FP 



484 



NEGLiaENCE, 



plaintiff than the rule of Clayarda v. Dethick. If a train 
fails to stop, and only slackens speed, at a station where it 
is timed to stop, and a passenger alights from it while in 
motion at the invitation of the company's servants (/), the 
matter is for the jury ; so if a train does not stop a reason- 
able time for passengers to alight, and starts while one is 
alighting (ff). Otherwise it is held that the passenger 
alights at his own risk. If he wants to hold the company 
liable he must go on to the next station and sue for the 
resulting damage (A). 

On the other hand, where the defendant's negligence 
has put the plaintiff in a situation of imminent peril, the 
plaintiff may hold the defendant liable for the natural 
consequences of action taken on the first alarm, though 
such action may turn out to have been unnecessary (e). 
It is also held that the running of even an obvious and 
great risk in order to save himian Ufe may be justified, as 
agc&nst those by whose default that Ufe is put in peril {k). 
And this seems just, for a contrary doctrine would have 
the effect of making it safer for the wrong-doer to create a 
great risk than a small one. Or we may put it thus ; 
that the law does not think so meanly of mankind as to 
hold it otherwise than a natural and probable consequence 
of a helpless person being put in danger that some able- 
bodied person should expose himself to the same danger to 
effect a rescue. 



(/) lUer V. JV. r. Central S. S. 
Co. (1872) 49 N. T. (4 Sickelfl) 47. 

fe) 63 N. T. at p. 659. 

(A) Burrowt v. ErU M. Co. (1876) 
63 N. Y. (18 Sickelfl) 656. 

(•) Coulter V. £xpres9 Co. (1874) 
66 N. Y. (11 SickelB) 585 ; Twomley 
V. Central Fork R. R. Co. (1878) 69 
K. Y. (24 SiokelB) 168. Cp. Joma 



Y. Boyee (1816) 1 Stark. 493. 

[k] Eekert v. Lang Island R. R. 
Co. (1871) 43 N. Y. 502, 3 Am. 
Bep. 721 (action hy repreeentatiye 
of a man kiUed in getting a child 
off the railway track in front of a 
train which was being negligently 
driven). 



PECULIAE AMERICAN RULES. 435 

American jurisprudenoe is exoeedingly rich in iHustra- Separation 
tions of the questions discussed in this chapter, and and feet 
American cases are constantly, and sometimes very freely, ^^*^ 
cited and even judicially reviewed (/) in our courts. It 
may therefore be useful to call attention to the peculiar 
turn given by legislation in many of the States to the 
treatment of points of " mixed law and fact." I refer to 
those States where the judge is forbidden by statute (in 
some cases by the Constitution of the State) (m) to charge 
the jury as to matter of fact. Under such a rule the 
summing-up becomes a categorical enumeration of all the 
specific inferences of fact which it is open to the jury to 
find, and which in the opinion of the Court would have 
different legal consequences, together with a statement of 
those legal consequences as leading to a verdict for the 
plaintiff or the defendant. And it is the habit of counsel 
to frame elaborate statements of the propositions of law 
for which they contend as limiting the admissible findings 
of fact, or as applicable to the facts which may be found, 
and to tender them to the Court as the proper instructions 
to be given to the jury. Hence there is an amount of 
minute discussion beyond what we are accustomed to in 
this country, and it is a matter of great importance, where 
an appeal is contemplated, to get as little as possible left 
at large as matter of fact. Thus attempts are frequently 
made to persuade a Court to lay down as matter of law 
that particular acts are or are not contributory negli- 
gence (n). Probably the common American doctrine that 

(/) E. ff. Lord Esher's judgment {n) For a strong example see 

in TA^ Bemina, 12 P. Div. at pp. Kttn$ v. N. Central JR. Co, 128 U. S. 

77—82. Cp. per Lord Hersohell 91. In Waahington ^. M, JR. Co. 

m Mills Y. ArtMtronff, 13 App. Ca. y. MeDade (1889) 135 U. S. 564, 

at p. 10. 564, '^oonnsel for the defendant . 

(m) Stimson, American Statute asked the Court to grant twenty 

LaW| p. 132, § 605. separate prayers for instructions to 

the jury." 

pf2 



436 NEGLIQEKCE. 

• 

tbe plaintifF has to prove, as a sort of preliminarj issue, 
that he was in the exercise of due oare, has its origin in 
this practice. It is not necessary or proper for an English 
lawyer to criticize the convenience of a rigid statutory 
definition of the provinces of judge and jury. But English 
practitioners consulting the American reports must bear its 
prevalence in mind, or they may find many things hardly 
intelligible, and perhaps even suppose the substantive dif- 
ferences between English and American opinion upon 
points of pure law to be greater than they really are. 



437 



CHAPTER XIL 



DUTIES OF IN8UBING SAFETT. 



In general) those who in person go about an undertaking Ezoep- 
attended with risk to their neighbours, or set it in motion J^!^ 
by the hand of a servant, are answerable for the conduct ?^** ° J 
of that undertaking with diligence proportioned to the oantion. 
apparent risk. To this rule the policy of the law makes 
exceptions on both sides. As we have seen in the chapter 
of G-eneral Exceptions, men are free to seek their own 
advantage in the ordinary pursuit of business or uses of 
property, though a probable or even intended result may 
be to diminish the profit or convenience of others. We 
now have to consider the cases where a stricter duty has 
been imposed. As a matter of history, such oases cannot 
easily be referred to any definite principle. But the 
groimd on which a rule of strict obligation has been 
maintained and consolidated by modem authorities is the 
magnitude of the danger, coupled with the difficulty of 
proving negligence as the specific cause in the event of the 
danger having ripened into actual harm. The law might 
have been content with applying the general standai-d of 
reasonable care, in the sense that a reasonable man dealing 
with a dangerous thing— fire, flood-water, poison, deadly 
weapons, weights projecting or suspended over a thorough- 
fare, or whatsoever else it be — ^will exercise a keener 
foresight and use more anxious precaution than if it were 
an object unlikely to cause harm, such as a faggot, or a' 
loaf of bread. A prudent man does not handle a loaded 



6\ 



438 DUTIES OF INSURING SAFETY. 

gun or a sharp sword in the same fashion as a stick or a 
shovel. But the course adopted in England has been to 
preclude questions of detail by making the duty absolute ; 
or, if we prefer to put it in that form, to consolidate the 
judgment of fact into an unbending rule of law. The law 
takes ifotioe that certain things are a source of extraordinary 
risk, and a man who exposes his neighbour to such risk 
is held, although his act is not of itself wrongful, to insure 
his neighbour against any consequent harm not due to 
some cause beyond human foresight and control 

BytamUr. Yarious particular rules of this kind (now to be re- 

Fletehtr. 

garded as applications of a more general one) are recog- 
nized in our law from early times. The generalization 
was efPected as late as 1868, by the leading case of 
Rvland^ji^g^lgiljJi^ where the judgment of the Ex- 
chequer Chamber delivered by Blackburn J. was adopted 
in terms by the House of Lords. 

The nature of the facts in Fletcher v. Bylatuhj and 
the question of law raised by them, are for our purpose 
best shown by the judgment itself {a) : — 

Jnd^ent « It appears from the statement in the case, that the 

' plaintiff was damaged by his property being flooded by 

water, which, without any fault on his part, broke out of 

a reservoir, constructed on the defendants' land by the 

defendants' orders, and maintained by the defendants. 

^^ It appears from the statement in the case, that the 
coal under the defendants' land had at some remote 
period been worked out; but this was unknown at the 
time when the defendants gave directions to erect the 

(a) L. B. 1 Ex. at p. 278, per For the statements of fact referred 
Wllles, Blackburn, Keating, Mel- to, see at pp. 267—269. 
lor, If ontague Smith, and Liuh J J. 



RYLANDS V. FLETCHER. 439 

reservoir, and the water in the reservoir would not have 
escaped from the defendants' land, and no mischief would 
have been done to the plaintiff, but for this latent defect 
in the defendants' subsoil. And it further appears that 
the defendants selected competent engineers and con- 
tractors to make their reservoir, and themselves personally 
continued in total ignorance of what we have called the 
latent defect in the subsoil; but that these persons 
employed by them in the course of the work became 
aware of the existence of the ancient shafts filled up with 
soil, though they did not know or suspect that they were 
shafts communicating with old workings. 

'^ It is found that the defendants personally were free 
from all blame, but that in fact proper care and skill was 
not used by the persons employed by them, to provide for 
the sufficiency of the reservoir with reference to these 
shafts. The consequence was that the reservoir when 
filled with water burst into the shafts, the water flowed 
down through them into the old workings, and thence 
into the plaintiff's mine, and there did the mischief. 

^' The plaintiff, though free from all blame on his part, 
must bear the loss unless he can establish that it was the 
consequence of some default for which the defendants are 
responsible. The question of law therefore arises, what is 
the obligation which the law casts on a person who, like 
the defendants, lawfully brings on his land something 
which, though harmless whilst it remains there, will 
naturally do mischief if it escape out of his land. It is 
agreed on all hands that he must take care to keep in that 
which he has brought on the land and keeps there, in order 
that it may not escape and damage his neighbours ; but 
the question arises whether the duty which the law casts 
upon him, under such circumstances, is an absolute duty 
to keep it in at his peril, or is, as the majority of 



440 DUTIES OF INSURING SAFETY. 

the Court of Exchequer have thought, merely a duty 
to take all reasonable and prudent precautions in order 
to keep it in, but no more. If the first be the law, the 
person who has brought on his land and kept there some- 
thing dangerous, and failed to keep it in, is responsible 
for all the natural consequences of its escape. If the 
second be the limit of his duty, he would not be answer- 
able except on proof of negligence, and consequently 
would not be answerable for escape arising from any 
latent defect which ordinary prudence and skill could not 

detect 

^' We think that the true rule of law is, that the person 

who for his own purposes brings on his lands, and collects 

and keeps there, anything likely to do mischief if it escapes, 

must keep it in at his peril, and, if he does not do so, is 

prima facie answerable for all the damage which is the 

natural consequence of its escape. He can excuse himself 

by showing that the escape was owing to the plaintiff's 

default ; or perhaps that the escape was the consequence of 

m mqfor, or the act of Qtoi ; but as nothing of this sort 

exists here, it is unnecessary to inquire what excuse would 

be sufficient. The general rule, as above stated, seems on 

principle just. The person whose grass or com is eaten 

down by the escaping cattle of his neighbour, or whose 

mine is flooded by the water from his neighbour's reservoir, 

or whose cellar is invaded by the filth of his neighbour's 

privy, or whose habitation is made unhealthy by the 

fumes and noisome vapours of his neighbour's alkali 

works, is damnified without any fault of his own ; and it 

seems but reasonable and just that the neighbour who has 

brought something on his own property which was not 

naturally there, harmless to others so long as it is confined 

to his own property, but which he knows to be mischievous 

if it gets on his neighbour's, should be obliged to make 



BYLANDS V. FLETCHER. 441 

good the damage which ensues if he does not suooeed in 
confining it to his own property. But for his act in 
bringing it there, no mischief could have accrued, and it 
seems but just that he should at his peril keep it there so 
that no mischief may accrue, or answer for the natural 
and anticipated consequences. And upon authority, this 
we think is established to be the law, whether the things 
so brought be beasts, or water, or filth, or stenches/' 

Not only was this decision affirmed in the House of Affinna- 
Lords (J), but the reasons given for it were fully con- ©f byH.L. 
firmed. '^ If a person brings or accumulates on his land 
anything which, if it should escape, may cause damage to; 
his neighbours, he does so at his peril. If it does escap^ 
and cause damage, he is responsible, however careful h( 
may have been, and whatever precautions he may hav( 
^en to prevent the damage " (c). It was not overlooke< 
that a line had to be drawn between this rule and the 
general immunity given to landowners for acts done in the 
^^ natural user" of their land, or "exercise of ordinary 
rights " — an immunity which extends, as had already been 
settled by the House of Lords itself (cf), even to obviously 
probable consequences. Here Lord Caims pointed out 
that the defendants had for their own purposes made " a 
non-natural use " of their land, by collecting water " in 
quantities and in a manner not the result of any work or 
operation on or under the land." 

The detailed illustration of the rule in Rylanda v. 
Fletcher J as governing the mutual claims and duties of 
adjacent landowners, belongs to the law of property rather 
than to the subject of this work {e). We shall return 

{b) Ryland9 v. Fletcher (1868) L. (i) Chaeemore v. Richardt (1859) 

B. 3 H. L. 330, 37 L. J. Ex. 161. 7 H. L. G. 349, 29 L. J. Ex. 81. 
{e) Lord Cranworth, at p. 340. (e) See Fletcher y. Smith (1877) 



443 



DUTIES OF INSURING SAFETY. 



presently to the spedal classes of cases (more or less dis-. 
cussed in the judgment of the Exchequer Chamber) for 
which a similar rule of strict responsibility had been estab- 
lished earlier. As laying down a positive rule of law, 
the decision in Rylanda v. Fletcher is not open to criticism 
in this country (/). But in the judgment of the Ex- 
chequer Chamber itself the possibility of exceptions is 
suggested, and we shall see that the tendency of later 
decisions has been rather to encourage the discovery of 
exceptions than otherwise. A rule casting the responsi- 
bility of an insurer on innocent persons is a hard rule, 
though it may be a just one ; and it needs to be main- 
tained by very strong evidence {g) or on very clear grounds 
of policy. Now the judgment in Fletclier v. Ry lands (A), 
carefully prepared as it evidently was, hardly seems to 
make such grounds clear enough for universal acceptance. 
The liability seems to be rested only in part on the 
evidently hazardous character of the state of things arti- 
ficially maintained by the defendants on their land. In 
part the case is assimilated to that of a nuisance (t), and 



2 App. Ca. 781, 47 L. J. Ex. 4 ; 
Sumphriet ▼. Cousitu (1877) 2 C. P. 
D. 239, 46 L. J. 0. P. 438 ; Murd- 
man y. North Eastern S. Co, (1878) 

3 0. P. Div. 168, 47 L. J. 0. P. 
368 ; and for the dhttinction as to 
« natural oourse of user," WtUon 
y. WaddeU, H. L. (So.) 2 App. Ga. 
95. The principle of Rylanda y. 
Fletcher was held applicable to an 
electric current discharged into the 
earth in National Telephone Co. y. 
Baker, '93, 2 Oh. 186, 62 L. J. Gh. 
699, 8 B. 818. 

(/) Jadidal opinions still differ 
in the United States. See Bigelow 
L. G. 497—600. The case has been 
cited with approyal in Massaoha- 



setts (ShipUy y. Fifty Auoeiatee, 
106 Mass. 194; Oorham y. OroeSj 
126 Mass. 232; Jfeara y. Dole, 135 
Mass. 608) ; bat distinctly dis- 
aUowed in New York: Zoeee y. 
Buchanan, 61 N.T. (6 Siokels) 476. 
(^) See Beff, y. Commieaionera qf 
Sewera for Eeaex (1885) 14 Q« B. 
Diy. 661. 

(A) L. B. 1 Ex. 277 aqq, 
(i) See especially at pp. 285-6. 
Bat can an isolated accident, how- 
eyer mischieyous in its resolts, be a 
noisanoe P though its consequences 
may, as where a branch lopped or 
blown down from a tree is left 
lying aoroas a highway. 



CHARACTER OP LATER CASES. 443 

in part, also, traoes are apparent of the formerly prevalent 
theory that a man's yoluntary aots, even when lawful and 
free from negligenoe, are prima facie done at his peril {k), 
a theory which modem authorities have explicitly rejected 
in America, and do not encourage in England, except so 
far as Rylanda v. Fktcher may itself be capable of being 
used for that purpose (/). Putting that question aside, 
one does not see why the policy of the law might not have 
been satisfied by requiring the defendant to insure dili- 
gence in proportion to the manifest risk (not merely the 
diligence of himself and his servants, but the actual use of 
due care in the matter, whether by servants, contractors, or 
others), and throwing the burden of proof on him in cases 
where the matter is peculiarly within his knowledge. 
This indeed is what the law has done as regards duties of 
safe repair, as we shall presently see. Doubtless it is pos- 
sible to consider Rylanda v. Fletcher as having only fixed 
a special rule about adjacent landowners {m) : but it was 
certainly intended to enunciate something much wider. 

Yet no case has been found, not being closely similar in Character 
its facts, or within some previously recognized category, in ^^geg^ ' 
which the unqualified rule of liability without proof of 
negligence has been enforced. We have cases where 
damages have been recovered for the loss of animals by 
the escape, if so it may be called, of poisonous vegetation 
or other matters from a neighbour's land (n). Thus the 

(k) L. R. 1 Ex. 286-7, 3 H. L. (m) Martin B., L. R. 6 Ex. at 

341. p. 223. 

(/) See The Nitro-glyeenne Ca»e (») There must be something of 

(1872) 15 WaU. 624; Broum y. this kind. A man ib not liable for 

Xendall (I860) 6 Cuah. 292 ; ffolmM the loss of a neighbonr's cattle 

y. Ifather (1875) L. R. 10 Ex. 261, which trespass and eat yew leares 

44 L. J. Ex. 176 ; Stanley y. Powell, on his land : JPontiny y. Noakea, '94, 

'91, 1 Q. B. 86, 60 L. J. Q. B. 2 Q. B. 281, 10 B. Joly, 283, 63 

62. L. J. Q. B. 649. 



444 DUTIES OF IKSUftiNG SAFETY. 

owner of yew trees, whose branohes project over his boun- 
dary, so that his neighbour's horse eats of them and is 
thereby poisoned, is held liable {n) ; and the same role has 
been applied where a fence of wire rope was in bad repair, 
so that pieces of rusted iron wire fell from it into a close 
adjoining that of the occupier, who was bound to maintain 
the fence, and were swallowed by cattle which died 
thereof (o). In these cases, however, it was not contended, 
nor was it possible to contend, that the defendants had 
used any care at all. The argimients for the defence went 
either on the acts complained of being within the '^ natural 
user " of the land, or on the damage not being such as 
could have been reasonably anticipated (p). We may add 
that having a tree, noxious or not, permanently projecting 
over a neighbour's land is of itself a nuisance, and letting 
decayed pieces of a fence, or anything else, fall upon a 
neighbour's land for want of due repair is of itself a tres- 
pass. Then in Ballard v. Tomlinson (q) the sewage col- 
lected by the defendant in his disused well was an abso- 
lutely noxious thing, and his case was, not that he had 
done his best to prevent it from poisoning the water which 
supplied the plaintiff's well, but that he was not bound to 
do anything. 

Exertion Qj^ tijg Qti^gj hand, the rule in Uplands v. Fhtcher has 

of aot of ' ^ 

Gk>d. been decided by the Court of Appeal not to apply to 

(it) CrowhurttY.AmerihamBuridl stranger. 

Board (1878) 4 Ex. D. 6, 48 L. J. (o) Firth y. Bowling Iron Co. 

Ex. 109. WiUonY, Ntwberry {m\) (1878) 3 0. P. D. 264, 47 L. J. 

L. K. 7 Q. B. 31, 41 L. J. Q. B. C. P. 368. 

31 , IB not inooiLBiBtent, f or there it {p) The former ground was 

was only ayerred that olippinga chiefly relied on in CrowhurtVt 

from the defendants' yew trees eate^ the latter in Firth^a. 

were on the plaintiff's land ; and (q) 29 Ch. Diy. 116 (1886), 64 

the dipping might, for aU that L. J. Ch. 464. 
appeared, have been the act of a 



RYLANDS V. FLOTCHER : EXCEPTIONS. 



446 



\: 



damage of wluoh the immediate cause ifl the act of Q-od (r). 
And the aot of G-od does not neoessarilj mean an operation 
of natural forces so violent and unexpeoted that no human 
foresight or skill oould possibly have prevented its effects. 
It is enough that the accident should he such as human i 
foresight could not he reasonably expected to anticipate ; | 
and whether it comes within this description is a question 
of fact (s). The only material element of fact which dis- 
tinguished the case referred to from Rylanda v. Fletcher 
was that the overflow which burst the defendants' embank- 
ment, and set the stored-up water in destructive motion, 
was due to an extraordinary storm. Now it is not because 
due dUigenoe has been used that an accident which 
nevertheless happens is attributable to the act of Q-od. 
And experience of danger previously unknown may doubts 
less raise the standard of due diligence for after-time {t). 
But the accidents that happen in spite of actual prudence, 
and yet might have been prevented by some reasonably 
conceivable prudence, are not numerous, nor are juries, 
even if able to appreciate so fine a distinction, likely to be 
much disposed to apply it (u). The authority of Bylanda 



(r) Aot of God»yi8 maiorss 
Otov 0Mt : see D. 19. 2. looatl oon- 
dnoti, 25, § 6. The dUsaioal signi- 
fication of vifl maior " is howerer 
wider for some piizpoees; Nugmt 
Y. Smith, 1 G. P. Di7. 423, 429, per 
Ckx^kbom G. J. 

(«) NiohoU Y. jfarftofk? (1876-6) 
L. B.16 Exr266, 2 Ex. D. 1, 45 
L. J. Ex. 174. Kote that Lord 
BramweQ, who in EyUrndt y. 
FUtchir took the Yiew that ulti- 
mately preYailed, was also a party 
to this deoiflion. The defoDdant 
was an owner of artifioial pools, 
formed by damming a natural 
stream, into whioh the water was 



finally let off by a system of weirs. 
The rainfall aooompanying an ex- 
tremely Yiolent thnndentorm broke 
the embankments, and the rush of 
water down the stream earned 
away four oonnty bridges, in re- 
spect of whioh damage the action 
was brought. 

(t) See Biig. y. Oommisiumen pf 
SewtrMfwr Etsex (1886) la judgment 
of Q. B. D., 14 Q. B. D. at p. 674. 

(«) " WhenoYor the world grows 
wiser it oonYicts those that came 
before of negligence." Bramwell 
B., L. B. 6 Ex. at p. 222. Bat 
juries do not, unless the defendant 
is a railway company. 



446 



DUTIES OP INSURING SAFETY. 



Act of 
Btrfingpery 



T. Fletcher is unquestioned, but Nichols v. Marsland has 
practioally empowered juries to mitigate the rule whenever 
its operation seems too harsh. 

Again the principal rule does not apply where the 
immediate cause of damage is the aot of a stranger (a;), nor 
where the artificial work which is the souroe of danger is 
maintained for the oonmion benefit of the plaintiff and 
the defendant (y) ; and there is some ground for also 
making an exception where the immediate cause of the 
harm, though in itself triviali is of a kind outside reason- 
able expectation (2). 

Works re- There is yet another exception in favour of persons 
authorised acting in the performance of a legal duty, or in the 
by law. exercise of powers specially conferred by law. Where a 
zamind&r maintained, and was by custom bound to main- 
tain, an ancient tank for the general benefit of agriculture 
in the district, the Judicial Committee agreed with the 
High Court of Madras in holding that he was not liable 
for the consequences of an overflow caused by extraordinary 
rainfall, no negligence being shown (^). In the climate 
of India the storing of water in artificial tanks is not only 



{x) Box V. Jubb (1879) 4 Ex. D. 
76, 48 L. J. Ex. 417. mUonr. 
Nevcberry (1871) L. E. 7 Q. B. 31, 
41 L. J. Q. B. 31, is really a deci- 
Bion on the same point. 

(y) Caratairt v. Taylor (1871) L. 
E. 6 Ex. 217, 40 L. J. Ex. 29 ; cp. 
Madras J^. Co, t. Zemindar of Car' 
ratenagaram, L. E. 1 Ind. App. 
364. 

(z) Carstaira v. Taylor ^ last note, 
but the other ground seems the 
prinoipal one. The plaintiff was 
the defendant*8 tenant; the de- 
fendant occupied the upper part of 
the house. A rat gnawed a hole 



in a rain-water box maintained by 
the defendant, and water escaped 
through it and damaged the plain- 
tiff's goods on the ground floor. 
Questions as to the relation of par- 
ticular kinds of damage to conven- 
tional exceptions in contracts for 
safe carriage or custody are of 
course on a different footing. See 
as to rats in a ship Samilton y. 
Pamhrf (1887) 12 App. Ca. 618, 
67 L. J. Q. B. 24. 

(a) Madras S. Co. v. Zemindar of 
Carvatenagaram^ L. E. 1 Ind. App. 
864 ; 8. C, 14 Ben. L. E. 209. 



MAINTENANCE OP WORKS. 



447 



a natural but a necessary mode of using land (b). In like 
manner the owners of a canal constructed under the 
authority of an Act of Parliament are not bound at their 
peril to keep the water from escaping into a mine worked 
under the canal (c). On the same principle a railway 
company authorized by Parliament to use locomotiye 
eugines on its line is bound to take all reasonable measures 
of precaution to prevent the escape of fire from its engines^ 
but is not bound to more. If, notwithstanding the best 
practicable care and caution, sparks do escape and set fire 
to the property of adjacent owners, the company is not 
liable ((iQ. The burden of proof appears to be on the 
company to show that due care was used {e)^ but there 
is some doubt as to this (/). 



.S 



Some years before the decision of Rylanda v. Fletcher ^- ^- -K- 
the duty of a railway company as to the safe maintenance Canada y. 
of its works was considered by the Judicial Committee *"* 
on appeal from Upper Canada (g). The persons whose 



(i) See per Holloway J. in the 
Court below, 6 Mad. H. G. at p. 
184. 

(c) Dunn r. Birmingham Canal 
Co. (1872) Ex. Oh. L. R. 8 Q. B. 
42, 42 L. J. Q. B. 34. The prin- 
ciple was hardly disputedi the 
point which caused some difficulty 
being* whether the defendants were 
bound to exercise for the plaintiff's 
benefit certain optional powers 
given by the same statute. 

(d) V aughan t. Taff VaU_ 
(1860) ^ih. 5 H. & If. 679, 29 
li. J. Ex. 247 ; cp. L. B. 4 H. L. 
201, 202 ; Fremantle v. X. # JV. W. 
£. Co, (1861) 10 C. B. N. S. 89, 81 
li. J. C. P. 12. 

{e) The escape of sparks has been 
held to be prima facie evidence of 



negligence ; Figgott y. S, C. i2. Co, 
(1846) 8 0. B. 229, 16 L. J. 0. P. 
235 ; cp. per Blackburn J. in 
Vaughan v. Taff Vale R. Co. 

(/) Smith ▼. L. ^ 8. W. J?. Co. 
(1870) Ex. Ch. L. R. 6 0. P. 14, 
seems to imply the contrary view ; 
but Figgott v. S. C. £. Co. was 
not cited. It may be that in the 
course of a generation the pre- 
sumption of negligence has been 
found no longer tenable, experience 
having shown the occasional escape 
of sparks to be consistent with all 
practicable care. Such a reaction 
would hardly have found favour, 
however, with the Court which 
decided Fletcher v. RyUmde in the 
Exchequer Chamber. 

(^) O. W. E. Co. of Canada v. 



448 



DUTIES OF INSURING SAFETY. 



Otiier 
oases of 
insaranoe 
lialnlitj. 



rights against the oompanj were in question were pas- 
sengers in a train which fell into a gap in an emhank- 
ment, the earth having given way by reason of a heavy 
rain-storm. It was held that '^ the railway company 
ought to have constructed their works in such a manner as 
to be capable of resisting all the violence of weather which 
in the climate of Canada might be expected, though per- 
haps rarely, to occur." And the manner in which the 
evidence was dealt with amounts to holding that the 
failure of works of this kind under any violence of 
weather, not beyond reasonable prevision, is of itself 
evidence of negligence. Thus the duty affirmed is a 
strict duty of diligence, but not a duty of insurance. Let 
us suppose now (what is likely enough as matter of fact) 
that in an accident of this kind the collapse of the embank- 
ment throws water^ or earth, or both, upon a neighbour's 
land so as to do damage there. The result of applying 
the rule in Rylands v. Fletcher will be that the duty of the 
railway company as landowner to the adjacent landowner 
is higher than its duty as carrier to persons whom it has 
contracted to carry safely; or property is more highly 
regarded than life and limb, and a general duty than a 
special one. 

If the embankment was constructed imder statutory 
authority (as in most cases it would be) that would 
bring the case within one of the recognized exceptions 
to Rylands v. Fletcher, But a difficulty which may vanish 
in practice is not therefore inconsiderable in principle. 

We shall now shortly notice the authorities, antecedent 
to or independent of Rylands v. Fletcher ^ which establish 

Braid (1863) 1 Moo. P. G. N. S. ling at liis own risk &o.), which 

101. There were some minor were oyerroled or regarded as not 

points on the evidenoe (whether open, and are therefore not noticed 

one of the soflerers was not trayel- in the text. 



CATTLE TRESPASS. 449 

the rule of absolute or all but absolute responsibility for 
oertain special risks. 

Cattle trespass is aji old an<d well settled head, perhaps Dniy of 
the oldest. It is the nature of cattle and other live stock oat£e?^ ^ 
to stray if not kept in, and to do damage if they stray ; 
and the owner is bound to keep them from straying on the 
land of others at his peril, though liable only for natural 
and probable consequences, not for an unexpected event, 
such as a horse not previously known to be vicious kicking 
a human being (A). So strict is the rule that if any part 
of an animal which the owner is bound to keep in is over 
the boundary, this constitutes a trespass. The owner of a 
stallion has been held liable on this ground for damage 
done by the horse kicking and biting the plaintiff's mare 
through a wire fence which separated their closes {%). The 
result of the authorities is stated to be " that in the case of 
animals trespassing on land, the mere act of the animal 
belonging to a man, which he could not foresee, or which 
he took all reasonable means of preventing, may be a tres- 
pass, inasmuch as the same act if done by himself would 
have been a trespass " (k). 

Blackstone (/) says that '' a man is answerable for not 
only his own trespass, but that of his cattle also : " but in 
the same breath he speaks of " negligent keeping" as the 
ground of liability, so that it seems doubtful whether the 
law was then clearly understood to be as it was laid down 
a century later in Cox^. Burbidge (m). Observe that the 

(A) Oox y. Burbidge (1863) 13 G. (k) Brett J., L. R. 10 C. P. at 

B. N. S. 430, 32 L. J. G. P. 89. p. 13 ; cp. the remarks on the 

(») Ellis Y. Zoftut Iron Co, (1874) general law in Smith y. Cook (187^) 

L. R. 10 G. P. 10, 44 L. J. G. P. 1 Q. B. D. 7^ 46 L. J. Q. B. 122 

24, a stronger case than lee y. (itself a case of contract). 

SUey (1865) 18 G. B. N. S. 722, (t) Gomm. ill. 211. 

34 L. J. G. P. 212, there dted and (m) 13 G. B. N. S. 430, 32 h. J. 

followed. G. P. 89. 

P. GO 



460 



DUTIES OP INSURING SAFETY. 



onlj^ reason given in the earlier books (as indeed it still 
prevails in quite reoent oases) is the arohaio one that 
trespass by a man's cattle is equivalent to trespass by 
himself. 

The rule does not apply to damage done by cattle stray- 
ing off a highway on which they are being lawfully driven : 
in such case the owner is liable only on proof of negli- 
I gence (n) ; and the law is the same for a town street as for 
i a country road (o). Also a man may be bound by pre- 
I Boription to maintain a fence against his neighbour's 
• cattle (p). 

'^ Whether the owner of a dog is answerable in trespass 
for every unauthorized entry of the animal into the land 
of another, as is the case with an ox," is a point still not 
clearly decided. The better opinion seems to favour a 
negative answer {q). 

Danger- Closely connected with this doctrine is the responsibility 

yki<^ 0^ owners of dangerous animals. ''A person keeping a 

•'**™*^' Imischievous animal with knowledge of its propensities is 

■ bound to keep it secure at his peril." If it escapes and 

does mischief, he is liable without proof of negligence, 

neither is proof required that he knew the animal to be 



(it) Goodwin y. ChweUy (1869) 4 
H. & N. 631, 28 L. J. Ex. 298. A 
oontraiy opinion was expreesed by 
littieton, 20 Edw. IV. 11, pi. 10, 
dted in Read ▼. Bdwardt, 17 C. B. 
N. S. 245, 34 L. J. C. P. at p. 32. 

(o) TilUtt V. Ward (1882) 10 Q. 
B. D. 17, 62 L. J. Q. B. 61, where 
an ox being driven through a town 
strayed into a shop. 

(p) So held as early as 1441-2 : 
T. B. 19 H. VI. 33, pi. 68. 

{q) Read ▼. Rdwarde (1864) 17 
0. B. N. S. 246, 34 L. J. C. P. 31 ; 



and see Millen v. Tawdry^ Latch, 
119. In Teape v. /9trai», 61 L. T. 
263, the defendant was held not 
liable for injury received by the 
plaintiff from the defendant's dog 
jumping over a wall and falling 
on him. Here it would seem tiie 
damage was not of a kind that 
could be reasonably foreseen, whe- 
ther there were a nominal trespass 
or not. The plaintiff could not 
have reoovered xmless the law 
treated a dog as an absolutely 
daugerous animal. 



PIKE AND DANGEROUS THINGS. 



461 



mificliieyous, if it is of a notoriotLBlj fieroe or mischieyous 
qpecies (r). If the animal is of a tame and domestic kind, 
the owner is liable only on proof that he knew the parti- 
cular animal to be '^ accustomed to bite mankind/' as the 
common form of pleading ran in the case of dogs, or other- 
wise vicious ; but when such proof is supplied, the duty is 
absolute as in the former case. It is enough to show that 
the animal has on foregoing occasions manifested a savage 
disposition, whether with the actual result of doing mis- 
chief on any of those occasions or not («). But the neces- . 
sity of proving the scientevy as it used to be called from 
the language of pleadings, is often a greater burden on the 
plaintiff than that of proving negligence would be; and as 
regards injury to cattle or sheep it has been done away with 
by statute. And the occupier of the place where a dog is 
kept is presumed for this purpose to be the owner of the 

dog(0. 

The word ^' cattle " includes horses {u) and perhaps 
pigs (v). 

The risk incident to dealing with fire, fire-arms, explo- Fire, fire- 
sive or highly inflammable matters, corrosive or otherwise "™** ^' 



(r) As a monkej : May ▼. Burdeit 
(1846) 9 Q. B. 101, and I Hale, 
P. G. 430, there cited. An elephant 
is a dangerous animal in England : 
Filbum Y. Aquarium Co, (1890) 25 
Q. B. Div. 268, 69 L. J. Q, B. 
471. 

(«) Worth ▼. 6'i«ifi^(1866) L. K. 
2 G. P. 1. As to what is sufficient 
notice to the defendant through his 
seryants, Baldwin v. Casella (1872) 
L. R. 7 Ex. 326, 41 L. J. Ex. 167 ; 
Applebee v. Ferey (1874) L. B. 9 
C. P. 647, 43 L. J. C. P. 365. 

(0 28 & 29 Vict. c. 60 (a.d. 1866). 
There is a similar Act for Scotland, 

G 



26 & 27 Viot. 0. 100. See Gamp- 
bell on Negligence, 2nd ed. pp. 63 
— 55. Further protection against 
misohieyous or masterless dogs is 
given by 34 & 35 Vict. o. 56, a 
statute of public police regulations 
outside the scope of this work. 
The Scottish comment on our old 
common law rule — " every dog is 
entitled to one worry '* — ^is almost 
too familiar for quotation. 

(m) Wright v. F^arson (1869) L. 
B. 4 Q. B. 582. 

(f») Child V. Seam (1874) L. B. 
9 Ex. 176, 43 L. J. Ex. 100 (on a 
diiferent Act). 

g2 



462 DUTIES OF INSURING SAFETY. 

dangerous or noxiouB fluicU, and (it is apprehended) 
poisons, is aooounted by the oommon law among tliose 
which subject the actor to strict responsibility. Some- 
times the term '' consummate care " is used to describe the 
amount of caution required: but it is doubtful whether 
eyen this be strong enough. At least, we do not know of 
any English case of this kind (not falling under some 
, recognized head of exception) where unsuccessful diUgence 
• on the defendant's part was held to exonerate him. 

Dntgr of As to fire, we find it in the fifteenth century stated to 
fire. be the custom of the reahn (which is the same thing as the 

oommon law) that every man must safely keep his own fire 
so that no damage in any wise happen to his neighbour (x). 
In declaring on this custom, however, the averment was 
^* ignem suum tarn negligenter custodivit : " and it does not 
appear whether the allegation of negligence was travers- 
able or not (y). We shall see that later authorities have 
adopted the stricter view. 

The common law rule applied to a fire made out of 
doors (for burning weeds or the like) as well as to fire in a 
dwelling-house (s). Here too it looks as if negligence was 
the gist of the action, which is described (in Lord Ray- 
mond's report) as " case grounded upon the common custom 
of the realm for negligently keeping his fire." Sembk^ if 
the fire were carried by sudden tempest it would be excus- 
able as the act of God. Liability for domestic fires has 
been dealt with by statute, and a man is not now answer- 
able for damage done by a fire which began in his house or 



{x) Y. B. 2 Hen. IV. 18, pi. 6, his peril. 
Thifl may be founded on ancient (y) BUokstone (i. 431) seems to 

Ghimanio onstom : op. LI. Langob. assume negligence as a condition 

00. 147, 148 (a-d. 643), where a man of liability. 

who carries fire more than nine feet (z) Tubervil or 2\timnlleY. Stamp, 

from the hearth is said to do so at 1 Salk. 13,. s. c. 1 Ld. Baym. 264. 



CAERYING FIRE IN LOCOMOTIVES. 



453 



on his land by aocident and without negligence (a). He is 
answerable for damage done by fire lighted by an authorized 
person, whether servant or contractor, notwithstanding that 
the conditions of the authority have not all been complied 
with (6). 

The use of fire for non-domestic purposes, if we may 
coin the phrase, remains a ground of the strictest respon- 
sibility. 



Decisions of our own time haye settled that one who 
brings fire into dangerous proximity to his neighbour's 
property, in such ways as by running locomotive engines 
on a railway without express statutoiy authority for their 
use (c), or bringing a traction engine on a highway (d)^ 
does so at his peril. And a company authorized by statute 



Ganying 
fire in 
looo- 
motlTeB. 



(a) 14 Geo. HI. c. 78, a. 86, as 
interpreted in Filliter v. Phippard 
(1847) 11 Q. B. 347, 17 L. J. Q. B. 
89. There was an earlier statute 
of Anne to a like effect ; 1 Blackst. 
Gomm. 431 ; and see per Cur. in 
Filliter v. Phippard, It would 
seem that even at common law the 
defendant would not be liahle 
unless he knowingly lighted or 
kept some fire to begin with ; for 
otherwise how could it be described 
as ignit auun ? 

{b) Black V. Christehureh Finance 
Co, (J. 0. from N. Z.), '94, A. 0. 
48, 63 L. J. P. C. 32. 

{c) Jones Y. Feetiniog R. Co, (1868) 
L. R. 3 Q. B. 733, 37 L. J. Q. B. 
214. Here diligence was proved, 
but the company held nevertheless 
liable. The rule was expressly 
stated to be an application of the 
wider principle of Rylande y. 
Fletcher ; see per Blackburn J. at 



p. 736. 

(d) Powell y. FaU (1880) 5 Q. B. 
Div. 697, 49 L. J. Q. B. 428. The 
use of traction engines on high- 
ways is regulated by statute, but 
not authorized in the sense of 
diminishing the owner's liability 
for nuisance or otherwise ; see the 
sections of the Locomotiye Acts, 
1861 and 1865, in the judgment of 
Mellor J. at p. 698. The dictum 
of BramweU L. J. at p. 601, that 
Vaughan y. Taff FaleR, Co, (1860) 
Ex. Ch. 5 H. & N. 679, 29 L. J. 
Ex. 247, p. 439, above, was wrongly 
decided, is extra-judicial. That 
case was not only itself decided by 
a Court of co-ordinate authority, 
but has been approved in the House 
of Lords ; Hammersmith E, Co, v. 
Brand (1869) L. R. 4 H. L. at p. 
202 ; and see the opinion of Black- 
bum J. at p. 197. 



464 



DUTIES OF INSUEING SAFETY. 



to ran a steam-engine on a highwa j still does so at its peril 
as regards the safe condition of the way (d). 

It seems permissible to entertain some doubt as to the 
historical foundation of this doctrine, and in the modem 
practice of the United States it has not found acceptance (e) . 
In New York it has, after careful discussion, been ex- 
pressly disallowed (/) . 



Fire- 
arms: 

Dixon Y. 
BeU. 



Loaded fire-arms are regarded as highly dangerous 
things, and persons dealing with them are answerable for 
damage done by their explosion, even if they have used 
apparently sufficient precaution. A man sent his maid- 
servant to fetch a flint-lock gun which was kept loaded, 
with a message to the master of the house to take out the 
priming first. This was done, and the gun delivered to 
the girl ; she loitered on her errand, and (thinking, pre« 
Bumably, that the gun would not go off) pointed it in 
sport at a child, and drew the trigger. The gun went off 
and the child was seriously wounded. The owner was 
held Uable, although he had used care, perhaps as much 
care as would commonly be thought enough. ^'It was 
incumbent on him who, by charging the gun, had made it 
capable of doing mischief, to render it safe and innoxious. 



(i) Sadler y. South Stafordthire, 
^. Tramways Co, (1889) 23 Q. B. 
JDir. 17, 68 L. J. Q. B. 421 (oar 
ran off line through a defect in 
the points : the Une did not belong 
to the defendant company, who 
had running powers over it). 

(0) It appears to be held every- 
where that unless the original act 
is in itself unlawful, the gist of 
the action is negligence ; see Gooley 
on Torts, 689—594. 



(/) Lotee y. Buehanan (1873) 61 
N. Y. 476 ; the owner of a steam- 
boiler was held not liable, inde- 
pendently of negligence, for an 
explosion which threw it into the 
plaintiff's buildings. For the pre- 
vious authorities as to fire, uni- 
formly holding that in order to 
succeed the plaintiff must prove 
negligence, see at pp. 487-8. Ry' 
lands y. Fletcher is disapproved as 
being in conflict with the current 
of American authority. 



EXPLOSIVES. 



465 



Tliis might have been done by the discharge or drawing of 
the contents. The gun ought to have been so left as to be 
out of all reach of doing harm" {g). This amounts to 
saying that in dealing with a dangerous instrument of this 
kind the only caution that will be held adequate in point 
of law is to abolish its, dangerous character altogether. 
Observe that the intervening negligence of the servant 
(which could hardly by any ingenuity have been imputed 
to her master as being in the course